EXHIBIT 4.1
AMENDMENT NO. 1 TO CREDIT AGREEMENT
This AMENDMENT NO. 1 dated as of September 27, 2001 (this
"Amendment"), among Oxford Automotive, Inc., a Michigan corporation (the
"Company"), Oxford Automotive Canada, Ltd. (the "Borrowing Subsidiary" and
together with the Company, the "Borrowers"), the Lenders (as defined below)
party hereto and Citicorp USA, Inc., as Administrative Agent (as defined below)
amends certain provisions of the Fourth Amended and Restated Credit Agreement,
dated as of June 8, 2001, among the Borrowers, the Lenders (as defined therein),
the Issuers (as defined therein), Citicorp USA, Inc., as agent for the Lenders
and the Issuers (in such capacity, the "Administrative Agent") and as collateral
agent for the Secured Parties (as defined therein), Comerica Bank, in its
capacity as syndication agent for the Lenders and the Issuers and Credit Suisse
First Boston, in its capacity as documentation agent for the Lenders and the
Issuers (such agreement, the "Credit Agreement").
W I T N E S S E T H:
WHEREAS, although the Company's financial statements for the
Fiscal Quarter ending September 30, 2001 (the "September 2001 Fiscal Quarter")
have not been prepared or delivered, the Company believes that upon the delivery
of such financial statements, it may be determined that the Company will have
breached the covenants contained in Section 6.1(a), 6.1(b) and 6.1(d) of the
Credit Agreement pertaining to the Leverage Ratio (the "Leverage Covenant"), the
Interest Coverage Ratio (the "Interest Coverage Covenant") and minimum EBITDA
requirements (the "Minimum EBITDA Covenant"), respectively, for the September
2001 Fiscal Quarter;
WHEREAS, the Company has requested the Administrative Agent
and the Requisite Lenders restructure certain terms of the Credit Agreement,
including amending the Leverage Covenant, the Interest Coverage Covenant and the
Minimum EBITDA Covenant for the September 2001 Fiscal Quarter and for certain
other fiscal quarters ending after the September 2001 Fiscal Quarter, and, in
connection therewith, the Administrative Agent and the Lenders are performing a
review of the Company's financial position in order to assist them to form a
view with respect to the amendments being requested by the Company and with
respect to the terms (which may include, without limitation, additional
amendments to the Credit Agreement that may increase the Applicable Margin,
modify certain affirmative and negative covenants and require the payment of an
amendment fee) under which the Administrative Agent and the Requisite Lenders
will consent to such amendments (such amendments and such other terms being
hereinafter referred to as the "Proposed Amendment");
WHEREAS, pending the results of the review presently being
conducted by the Administrative Agent and the Lenders, which review is
anticipated to be completed prior to November 15, 2001, the Company has
requested that the Administrative Agent and the Requisite Lenders enter into an
amendment of the Credit Agreement to provide certain specified relief with
respect to the Leverage Covenant, the Interest Coverage Covenant and the Minimum
EBITDA Covenant for the Fiscal Quarter ending September 30, 2001;
WHEREAS, pursuant to Section 9.1 of the Credit Agreement, the
consent of the Requisite Lenders is required to amend the Credit Agreement as
set forth herein;
NOW, THEREFORE, in consideration of the above premises, the
Borrowers, the Requisite Lenders party hereto and the Administrative Agent agree
as follows:
SECTION 1. DEFINITIONS.
Unless otherwise defined herein, capitalized terms used herein
shall have the meanings ascribed to such terms in the Credit Agreement. In
addition, the following terms shall have the following meanings:
"Amendment Effective Date" has the meaning specified in
Section 5.
"Minimum EBITDA Covenant" has the meaning specified in the
recitals hereto.
"Interest Coverage Covenant" has the meaning specified in the
recitals hereto.
"Leverage Covenant" has the meaning specified in the recitals
hereto.
"September 2001 Fiscal Quarter" has the meaning specified in
the recitals hereto.
SECTION 2. AMENDMENT TO ARTICLE V (AFFIRMATIVE COVENANTS). Effective as
of the Amendment Effective Date and subject to the terms and conditions set
forth herein, Article V is amended as follows:
(a) Amendment to Reporting Requirements. Section 5.4
of the Credit Agreement is amended by inserting the following new subparagraphs
immediately after the end of subparagraph (o):
(p) prior to October 22, 2001, copies of (i) a financial
forecast for the Company and its Subsidiaries for each Fiscal Year
through the Scheduled Termination Date and (ii) a strategic business
plan for the Company and its Subsidiaries, in each case in form and
substance satisfactory to the Administrative Agent; and
(q) in addition to the monthly delivery requirements pursuant
to subclause (b(iii)) above, no later than 5:00 p.m. (New York time) on
each Friday, cash flow forecasts for the Company's Domestic
Subsidiaries and Canadian Subsidiaries for the then next succeeding
three months.
(b) Consultants and Assessments. Article V is amended
by inserting the following new Section 5.13 immediately after the end of Section
5.12:
SECTION 5.13. CONSULTANTS AND ASSESSMENTS. The Borrowers consent and
agree that at any time prior to November 15, 2001, at the expense of
the Borrowers (i) the Administrative Agent, on behalf of the Lenders,
may appoint an independent or internal consultants and appraisers to
conduct reviews and assessments with respect to the Company and its
Subsidiaries, including, but not limited to, appraisals with respect to
the Collateral, (ii) the Borrowers shall conduct, or shall cause to be
conducted, and upon request of the Administrative Agent, present to the
Administrative Agent for approval, such appraisals, investigations and
reviews as the Administrative Agent shall reasonably request and (iii)
the Borrowers will use their best efforts to assist each consultant and
appraiser appointed by the Administrative Agent to conduct and conclude
such examinations.
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SECTION 3. AMENDMENT OF ARTICLE VI (NEGATIVE COVENANTS). Effective as
of the Amendment Effective Date and subject to the terms and conditions set
forth herein, Article VI is amended as follows:
(a) Amendment to the Leverage Ratio Covenant. Section 6.1(a)
of the Credit Agreement is amended by deleting the following from the grid
contained in such section:
------------------------------------ ------------------
September 30, 2001 5.60 to 1
------------------------------------ ------------------
provided, however, that if, as of November 15, 2001, the Proposed Amendment has
not been consummated for any reason whatsoever (including, without limitation,
by reason of the failure to obtain credit approval for such Proposed Amendment
of a sufficient number of Lenders or the existence of any Event of Default), the
amendment contained in this Section 2(a) shall be deemed null and void and shall
cease on such date to be of any further force or effect.
(b) Amendment to the Interest Ratio Covenant. Section 6.1(b)
of the Credit Agreement is amended by deleting the following from the grid
contained in such section:
------------------------------------ ------------------
September 30, 2001 1.60 to 1
------------------------------------ ------------------
provided, however, that if, as of November 15, 2001, the Proposed Amendment has
not been consummated for any reason whatsoever (including, without limitation,
by reason of the failure to obtain credit approval for such Proposed Amendment
of a sufficient number of Lenders or the existence of any Event of Default), the
amendment contained in this Section 2(b) shall be deemed null and void and shall
cease on such date to be of any further force or effect.
(c) Amendment to the Minimum EBITDA Covenant. Section 6.1(d)
of the Credit Agreement is amended by deleting the following from the grid
contained in such section:
------------------------------------ ------------------
September 30, 2001 $29,500,000
------------------------------------ ------------------
provided, however, that if, as of November 15, 2001, the Proposed Amendment has
not been consummated for any reason whatsoever (including, without limitation,
by reason of the failure to obtain credit approval for such Proposed Amendment
of a sufficient number of Lenders or the existence of any Event of Default), the
amendment contained in this Section 2(c) shall be deemed null and void and shall
cease on such date to be of any further force or effect.
(d) Amendment to Limitation on Management Fees. Section
6.18(b) is amended by deleting the section in its entirety and replacing it with
the following:
(b) base management fees payable to Oxford Investment Group, Inc.
pursuant to the management agreement set forth on Schedule 6.18,
without giving effect to any amendment or modification of such
agreement (the "Management Agreement") not in excess of $2,000,000 in
any twelve month period, to be paid in twelve equal monthly
installments, and as otherwise described in the Management Agreement,
provided, however that the Company may not prepay any such management
fees and provided further, however; that;
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(i) prior to the Covenant Reversion Date, not more
than 50% of such base management fees that would be payable in
any one month period shall be paid and base management fees
not paid shall be permitted to accrue, in addition, base
management fees accrued and not paid since July 1, 2001 shall
not be paid until the Covenant Reversion Date;
(ii) prior to the Covenant Reversion Date, out of
pocket expenses paid by the Company pursuant to the Management
Agreement shall not exceed an aggregate amount of $200,000;
and
(iii) no base management fees (excluding out of
pocket expenses provided for by the Management Agreement in an
aggregate amount not to exceed $200,000) shall be paid
pursuant to this clause (b) if any Event of Default or Default
exists or would be caused thereby; and
SECTION 4. PROHIBITION ON REVOLVING CREDIT OUTSTANDINGS AND SWING
LOANS. From the Amendment Effective Date through and including November 15,
2001, no Lender, no Swing Loan Lender, no Issuer and no Canadian Lender shall be
obligated to make any Revolving Loan, make any Swing Loan, issue any Letter of
Credit or accept any Banker's Acceptance, respectively, to any Borrower.
SECTION 5. CONDITIONS PRECEDENT TO THE EFFECTIVENESS OF THIS AMENDMENT.
This Amendment shall become effective as of September 27, 2001 (the "Amendment
Effective Date") on the date when the following conditions precedent have been
satisfied:
(a) Certain Documents. The Administrative Agent shall have
received on or before the Amendment Effective Date all of the following, all of
which shall be in form and substance satisfactory to the Administrative Agent:
(i) this Amendment executed by the Borrowers and Lenders
constituting the Requisite Lenders;
(ii) the Consent and Agreement to this Amendment executed by
the Subsidiary Guarantors;
(iii) the Consent and Agreement to this Amendment executed
by The Oxford Investment Group, Inc.; and
(iv) such additional documentation as the Administrative
Agent or the Requisite Lenders may reasonably require.
(b) Representations and Warranties. Each of the
representations and warranties made by the Borrowers or any Subsidiary Guarantor
in or pursuant to the Credit Agreement and the other Loan Documents to which the
Borrowers or any of the Subsidiary Guarantors is a party or by which the
Borrowers, or any of the Subsidiary Guarantor is bound, shall be true and
correct in all material respects, after giving effect to the terms of this
Amendment, on and as of the Amendment Effective Date (other than representations
and warranties in any such Loan Document which expressly speak as of a different
date).
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(c) No Events of Default. No Event of Default or Default shall
have occurred and be continuing on the Amendment Effective Date.
SECTION 6. REPRESENTATIONS AND WARRANTIES. Each Borrower hereby
represents and warrants to the Administrative Agent and the Lenders that as of
the date hereof (x) no Event of Default or Default under the Credit Agreement
shall have occurred and be continuing and (y) all of the representations and
warranties of the Loan Parties contained in Article IV of the Credit Agreement
and in any other Loan Document continue to be true and correct as of the date of
execution hereof in all material respects, as though made on and as of such date
(other than representations and warranties in any such Loan Document which
expressly speak as of a different date).
SECTION 7. REFERENCE TO AND EFFECT ON THE LOAN DOCUMENTS.
(a) Upon the effectiveness of this Amendment, on and after the
date hereof, each reference in the Credit Agreement to "this Agreement",
"hereunder", "hereof" or words of like import, and each reference in each other
Loan Document, shall mean and be a reference to the Credit Agreement as amended
hereby.
(b) Except as specifically amended hereby, all of the terms of
the Credit Agreement and all other Loan Documents shall remain unchanged and in
full force and effect.
(c) The execution, delivery and effectiveness of this
Amendment shall not, except as expressly provided herein, operate as a amendment
or waiver of any right, power or remedy of any Lender, any Issuer, the
Administrative Agent or the Collateral Agent under the Credit Agreement or any
of the Loan Documents, nor constitute an amendment or waiver of any provision of
the Credit Agreement or any of the Loan Documents.
(d) This Amendment is a Loan Document.
(e) For the purposes of clarification, each of the parties
hereto agree that in the event the Proposed Amendment has not been consummated
on or prior to November 15, 2001 and the amendments to the Leverage Covenant,
the Interest Coverage Covenant and the Minimum EBITDA Covenant contained in
Section 2 of this Amendment cease to be of any further force and effect pursuant
to the terms of the proviso contained in each such section, any Default or Event
of Default that would have arisen but for the amendments contained in such
sections shall constitute a Default or an Event of Default from and after
November 15, 2001, and all rights, privileges and remedies of the Administrative
Agent and the Lenders relating thereto under the Credit Agreement and other Loan
Documents shall be fully effective and enforceable as if such covenants had not
been amended by this Amendment. The Company agrees that the Administrative Agent
and the Lenders shall not be under any obligation to consummate the Proposed
Amendment and have not committed or offered to commit to enter into any such
Proposed Amendment.
SECTION 8. RELEASES. In further consideration of the Lenders' execution
of this Amendment, the Borrowers and each other Loan Party hereby release the
Administrative Agent, each Lender and each Issuer and their respective
affiliates, officers, employees, directors, agents and attorneys (collectively,
the "Releasees") from any and all claims, demands, liabilities,
responsibilities, disputes, causes of action (whether at law or equity) and
obligations of every nature whatsoever, whether liquidated or unliquidated,
known or unknown, matured or
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unmatured, fixed or contingent that any of the Loan Parties may have against
Releasees which arise from or relate to the Obligations, any Collateral, any
Loan Document, any documents, agreements, dealings or other matters in
connection with any of the Loan Documents, and any third parties liable in whole
or in part for the Obligations, in each case to the extent arising (x) on or
prior to the date hereof or (y) out of, or relating to, actions, dealings or
matters occurring on or prior to the date hereof (including, without limitation,
any actions or inactions which Releasees may have taken prior to the date
hereof).
SECTION 9. COSTS AND EXPENSES.
(a) The Borrowers agree to pay on demand in accordance with
the terms of Section 9.3 of the Credit Agreement all costs and expenses of the
Administrative Agent in connection with the preparation, reproduction, execution
and delivery of this Amendment and all other Loan Documents entered into in
connection herewith, including the reasonable fees, expenses and disbursements
of Weil, Gotshal & Manges LLP, counsel for the Administrative Agent with respect
thereto.
(b) The Borrowers acknowledge that the Administrative Agent
has requested that Ernst & Young LLP resume conducting due diligence with
respect to the Company and its Subsidiaries, for and on behalf of itself and the
Lenders and further, the Borrowers acknowledge and agree that pursuant to
Section 9.3 of the Credit Agreement, all reasonable costs and expenses incurred
by the Administrative Agent in connection with the appointment of Ernst & Young
LLP are reimbursable by the Borrowers to the Administrative Agent upon demand
thereby.
SECTION 10. TITLES. The Section titles contained in this Amendment are
and shall be without substantive meaning or content of any kind whatsoever and
are not a part of the agreement between the parties hereto.
SECTION 11. EXECUTION IN COUNTERPARTS. This Amendment may be executed
and delivered in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed and delivered shall be
deemed an original and all of which taken together shall constitute one and the
same original agreement.
SECTION 12. NOTICES. All communications and notices to the
Administrative Agent hereunder shall be given as provided in the Credit
Agreement.
SECTION 13. SEVERABILITY. If any term or provision set forth in this
Amendment shall be invalid or unenforceable, the remainder of this Amendment, or
the application of such terms or provisions to persons or circumstances, other
than those to which it is held unenforceable, shall not in any way be affected
or impaired thereby.
SECTION 14. SUCCESSORS. The terms of this Amendment shall be binding
upon, and shall inure to the benefit of, the parties hereto and their respective
successors or assigns.
SECTION 15. GOVERNING LAW. This Amendment shall be interpreted, and the
rights and liabilities of the parties determined, in accordance with the
internal law of the State of New York.
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IN WITNESS WHEREOF, this Amendment has been duly executed on
the date set forth above.
Borrowers:
OXFORD AUTOMOTIVE, INC.
By: /s/ Aurelian Bukatko
--------------------
Name: Aurelian Bukatko
Title: Executive Vice President and CFO
OXFORD AUTOMOTIVE CANADA LTD.
By: /s/ Aurelian Bukatko
--------------------
Name: Aurelian Bukatko
Title: Executive Vice President and CFO
Administrative Agent and Collateral Agent:
CITICORP USA, INC.
By: /s/ Anthoney Murphy
--------------------
Name: Anthony Murphy
Title: Director
Issuer:
CITIBANK, N.A.
By: /s/ Anthoney Murphy
--------------------
Name: Anthony Murphy
Title: Director
Syndication Agent:
COMERICA BANK
By: /s/ Alan S. Carlyle
--------------------
Name: Alan S. Carlyle
Title: Officer
SIGNATURE PAGE TO AMENDMENT NO. 1 AGREEMENT
Documentation Agent:
CREDIT SUISSE FIRST BOSTON
By: /s/ William S. Lutkins
--------------------
Name: William S. Lutkins
Title: Vice President
By: /s/ Robert Hetu
--------------------
Name: Robert Hetu
Title: Director
Lenders:
BANK OF MONTREAL
By:
---------------------------
Name:
Title:
THE BANK OF NEW YORK
By: /s/ Joshua Feldman
--------------------
Name: Joshua Feldman
Title: Vice President
THE BANK OF NOVA SCOTIA
By:
---------------------------
Name:
Title:
BANKERS TRUST COMPANY
By: /s/ Robert Talesca
--------------------
Name: Robert Talesca
Title: V.P.
SIGNATURE PAGE TO AMENDMENT NO. 1 TO CREDIT AGREEMENT
DEUTSCHE BANK AG, CANADA BRANCH
By:
---------------------------
Name:
Title:
By:
---------------------------
Name:
Title:
CITICORP USA, INC.
By: /s/ Anthony Murphy
---------------------------
Name: Anthony Murphy
Title: Director
CITIBANK CANADA
By:
---------------------------
Name:
Title:
COMERICA BANK
By: /s/ Timothy O. Ashley
---------------------------
Name: Timothy O. Ashley
Title: Senior V.P.
CREDIT SUISSE FIRST BOSTON
By:
---------------------------
Name:
Title:
By:
---------------------------
Name:
Title:
SIGNATURE PAGE TO AMENDMENT NO. 1 TO CREDIT AGREEMENT
CREDIT SUISSE FIRST BOSTON CANADA
By:
---------------------------
Name:
Title:
By:
---------------------------
Name:
Title:
FIFTH THIRD BANK, N.A.
(formerly, FIFTH THIRD BANK, NORTHWESTERN
OHIO, N.A.)
By: /s/ Bruce K. Lee
---------------------------
Name: Bruce K. Lee
Title: Executive Vice President
THE CHASE MANHATTAN BANK
By: /s/ Susan E. Atkins
---------------------------
Name: Susan E. Atkins
Title: Managing Director
THE CHASE MANHATTAN BANK, TORONTO BRANCH
By: /s/ Susan E. Atkins
Name: Susan E. Atkins
---------------------------
Title: Managing Director
NATIONAL BANK OF CANADA
By: /s/ Duane K. Bedard
---------------------------
Name: Duane K. Bedard
Title: Vice President
By: /s/ Paul C. Masserang
---------------------------
Name: Paul C. Masserang
Title: Ass't Vice President
SIGNATURE PAGE TO AMENDMENT NO. 1 TO CREDIT AGREEMENT
CONSENT, AGREEMENT AND AFFIRMATION OF GUARANTY.
Each of the undersigned Subsidiary Guarantors hereby consents
to the terms of the foregoing Amendment in its capacity as a guarantor under the
Guaranty and agrees that the terms of this Amendment shall not affect in any way
its obligations and liabilities under its guaranty, all of which obligations and
liabilities shall remain in full force and effect and each of which is hereby
reaffirmed.
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
976459 ONTARIO LIMITED
By: /s/ Aurelian Bukatko
--------------------
Name: Aurelian Bukatko
Title: Vice President and CFO
SIGNATURE PAGE TO GUARANTOR'S CONSENT TO AMENDMENT NO. 1
CONSENT AND AGREEMENT
The undersigned hereby consents and agrees to be bound by the
terms of Section 2(d) of the foregoing Amendment which provides that from
September 27, 2001 until the Covenant Reversion Date (as defined in the Credit
Agreement) Oxford Automotive Inc. shall not be permitted to pay more than 50% of
any management, consulting or similar fees or amounts to the undersigned and the
undersigned hereby agrees that it will not accept any such management,
consulting or similar fees or amounts during such period.
THE OXFORD INVESTMENT GROUP, INC.
By: /s/ Rex E. Schlaybaugh, Jr.
---------------------------
Name: Rex E. Schlaybaugh, Jr.
Title: Vice Chairman
SIGNATURE PAGE TO CONSENT TO AMENDMENT NO. 1