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EXHIBIT 10.1
OXFORD AUTOMOTIVE, INC.
$40,000,000
10-1/8% SENIOR SUBORDINATED NOTES DUE 2007
PURCHASE AGREEMENT
New York, New York
December 1, 1998
Bear, Stearns & Co. Inc.
BT Alex. Brown Incorporated
Morgan Stanley & Co. Incorporated
c/o Bear, Stearns & Co. Inc.
245 Park Avenue
New York, New York 10167
Ladies and Gentlemen:
Oxford Automotive, Inc., a Michigan corporation (the "Company"),
proposes to issue and sell to Bear, Stearns & Co. Inc., BT Alex. Brown
Incorporated and Morgan Stanley & Co. Incorporated (collectively, the "Initial
Purchasers") $40,000,000 principal amount of its 10-1/8% Senior Subordinated
Notes Due 2007 (the "Securities"), to be guaranteed on a senior subordinated
basis (the "Subsidiary Guarantees") by BMG North America Limited, an Ontario
corporation; BMG Holdings Inc., an Ontario corporation; Lobdell Emery
Corporation, a Michigan corporation; Winchester Fabrication Corporation, a
Michigan corporation; Creative Fabrication Corporation, a Tennessee corporation;
Parallel Group International, Inc., an Indiana corporation; Laserweld
International LLC, an Indiana corporation; Concept Management Corporation, a
Michigan corporation; Lewis Emery Capital Corporation, a Michigan corporation;
RPI Holdings, Inc., a Michigan corporation; Howell Industries, Inc., a Michigan
corporation; Oxford Suspension, Inc., a Michigan corporation; RPI, Inc., a
Michigan corporation; Prudenville Manufacturing, Inc., a Michigan corporation;
and Oxford Suspension Ltd., an Ontario corporation (each a "Subsidiary
Guarantor" and collectively the "Subsidiary Guarantors"), and to be issued under
an indenture (the "Indenture") dated as of December 1, 1998 between the Company,
the Subsidiary Guarantors and U.S. Bank Trust National Association, as trustee
(the "Trustee").
The sale of the Securities to the Initial Purchasers will be made
without registration of the Securities under the Securities Act of 1933, as
amended (the "Securities Act"), in reliance upon exemptions from the
registration requirements of the Securities Act. You have advised the Company
that the Initial Purchasers will offer and sell the Securities purchased
hereunder in accordance with Section 4 hereof as soon as you deem advisable.
In connection with the sale of the Securities, the Company has prepared
a final offering
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memorandum, dated December 1, 1998 (including any and all exhibits thereto and
any information or documents incorporated by reference therein, the "Final
Memorandum"). The Final Memorandum sets forth certain information concerning the
Company, the Subsidiary Guarantors and the Securities. The Company and the
Subsidiary Guarantors, jointly and severally, hereby confirm that they have
authorized the use of the Final Memorandum, and any amendment or supplement
thereto, in connection with the offer and sale of the Securities by the Initial
Purchasers. Unless stated to the contrary, all references herein to the Final
Memorandum are to the Final Memorandum at the Execution Time (as defined below),
including any Exchange Act (as defined below) documents included in such Final
Memorandum, but such references are not meant to include any amendment or
supplement or any information incorporated by reference therein subsequent to
the Execution Time and any references herein to the terms "amend," "amendment"
or "supplement" with respect to the Final Memorandum shall be deemed to refer to
and include any information filed under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), subsequent to the Execution Time which is
incorporated by reference therein.
The holders of the Securities will be entitled to the benefits of the
Registration Agreement dated the date hereof, among the Company, the Subsidiary
Guarantors and the Initial Purchasers (the "Registration Agreement").
Capitalized terms used herein without definitions have the respective
meanings assigned to them in the Final Memorandum.
1. Representations and Warranties. The Company and the Subsidiary
Guarantors, jointly and severally, represent and warrant to and agree with the
Initial Purchasers as set forth below in this Section 1.
(a) Each of the Company, the Subsidiary Guarantors and their
respective subsidiaries is a corporation, a limited liability company or
a partnership, duly incorporated or formed, and is validly existing as a
corporation, a limited liability company or a partnership in good
standing under the laws of the jurisdiction in which it is chartered,
organized or formed and is duly qualified to do business as a foreign
corporation, limited liability company or partnership and is in good
standing under the laws of each jurisdiction which requires such
qualification wherein it owns or leases material properties or conducts
material business, except in such jurisdictions in which the failure to
so qualify would not have a material adverse effect on the Company, the
Subsidiary Guarantors and their respective subsidiaries taken as a
whole.
(b) Each of the Company, the Subsidiary Guarantors and their
respective subsidiaries has full power (corporate and other) to own or
lease its properties and conduct its business as described in the Final
Memorandum; and each of the Company and the Subsidiary Guarantors has
full power (corporate and other) to issue the Securities and to enter
into this Agreement, the Indenture, the Subsidiary Guarantees and the
Registration Agreement (collectively, the "Transaction Documents") to
which it is a party and to carry out all the terms and provisions hereof
and thereof to be carried out by it,
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including, without limitation, the issuance, sale and delivery of the
Securities.
(c) The issued shares of capital stock of each of the Company's
subsidiaries have been duly authorized and validly issued, are fully
paid and nonassessable and, except as otherwise set forth in the Final
Memorandum, are owned beneficially, directly or indirectly, by the
Company free and clear of any security interests, liens, encumbrances,
preemptive rights or claims.
(d) The Company's authorized capital stock consists of 400,000
shares of common stock, of which 309,750 shares are issued and
outstanding. Except as set forth in the Final Memorandum, no holders of
outstanding shares of capital stock of the Company are entitled as such
to any preemptive or other rights to subscribe for any of the
Securities.
(e) The consolidated financial statements and schedules of the
Company and its consolidated subsidiaries included in the Final
Memorandum present fairly in all material respects the financial
position of the Company and its consolidated subsidiaries and the
results of operations and changes in financial condition as of the dates
and periods therein specified. Such financial statements and schedules
have been prepared in accordance with generally accepted accounting
principles consistently applied throughout the periods involved (except
as otherwise noted therein). The pro forma financial statements of the
Company and its subsidiaries and the related notes thereto included in
the Final Memorandum have been properly compiled on the bases described
therein, and the assumptions used in the preparation thereof are
reasonable and the adjustments used therein are appropriate to give
effect to the transactions and circumstances referred to therein and to
the knowledge of the Company such pro forma financial statements and the
related notes thereto have been prepared in accordance with the
Securities and Exchange Commission's (the "Commission") rules and
guidelines with respect to pro forma financial statements. The selected
financial data set forth in the Final Memorandum under the headings
"Selected Financial Data" in the Form 10-K dated March 31, 1998;
"Unaudited Pro Forma Combined Financial Data" in the Form 8-K dated
April 1, 1998; and "Condensed Consolidating Information" in the Form
10-Q dated June 30, 1998, present fairly in all material respects, on
the basis stated in the Final Memorandum, the information included
therein.
(f) Each of PricewaterhouseCoopers LLP, who have certified
certain financial statements of the Company and its consolidated
subsidiaries, and Deloitte & Touche, who have certified certain
financial statements of BMG North America Limited and delivered their
respective reports with respect to the audited consolidated financial
statements and schedules included in or incorporated by reference in the
Final Memorandum, are independent public accountants within the meaning
of the Securities Act and the applicable rules and regulations
thereunder.
(g) The execution, delivery and performance of this Agreement
has been duly
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authorized by the Company and the Subsidiary Guarantors, this Agreement
has been duly executed and delivered by the Company and the Subsidiary
Guarantors and, upon the due execution and delivery by the other parties
hereto, this Agreement will constitute a legal, valid and binding
obligation of the Company and the Subsidiary Guarantors, enforceable in
accordance with its terms, subject to the effects of bankruptcy,
insolvency, fraudulent conveyance, moratorium, reorganization or other
similar laws or court decisions relating to or affecting the rights of
creditors generally or of general principles of equity (whether
considered in a proceeding in equity or at law) and the unenforceability
under certain circumstances under law or court decisions of provisions
providing for the indemnification of or contribution to a party with
respect to a liability where such indemnification or contribution is
contrary to public policy. This Agreement conforms in all material
respects to the description thereof contained in the Final Memorandum.
(h) No legal or governmental proceedings are pending to which the
Company or any of its subsidiaries is a party or to which the property
of the Company or any of its subsidiaries is subject that are not
described in the Final Memorandum, and no such proceedings have been
threatened against the Company or any of its subsidiaries or with
respect to any of their respective properties, except in each case for
such proceedings that, if the subject of an unfavorable decision, ruling
or finding, would not, individually or in the aggregate, result in a
material adverse effect on the condition (financial or otherwise),
business prospects, net worth or results of operations of the Company
and its subsidiaries, taken as a whole (a "Material Adverse Effect"), or
have a Material Adverse Effect on the ability of the Company or any
Subsidiary Guarantor to perform its obligations under any of the
Transaction Documents.
(i) The issuance, offering and sale of the Securities to the
Initial Purchasers by the Company and the Subsidiary Guarantors pursuant
to this Agreement, the compliance by the Company and the Subsidiary
Guarantors with the other provisions of this Agreement and the
authorization, execution and delivery by the Company and the Subsidiary
Guarantors of this Agreement and the other Transaction Documents to
which it is a party and the consummation of the other transactions
contemplated herein and therein do not (i) require the consent,
approval, authorization, registration or qualification of or with any
governmental authority, except such as have been obtained and such as
may be required under state securities or blue sky laws or, with respect
to the obligations under the Registration Agreement, except such as may
be required under the Trust Indenture Act of 1939, as amended (the
"Trust Indenture Act"), or as may be required to register the Securities
under the Securities Act or (ii) conflict with or result in a breach or
violation of any of the terms and provisions of, or constitute a default
under, (A) any indenture, mortgage, deed of trust, lease or other
agreement or instrument to which the Company or any of its subsidiaries
is a party or by which the Company or any of its subsidiaries or any of
their respective properties are bound, or (B) the charter documents or
bylaws of the Company or any of its subsidiaries or (C) any statute or
any judgment, decree, order, rule or regulation of any court or other
governmental authority or any arbitrator applicable to the Company or
any of its subsidiaries, except in each case for
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such conflicts, breaches or violations that would not, individually or
in the aggregate, result in a Material Adverse Effect.
(j) The Company and each of its subsidiaries have good and
marketable title to all items of real property and good title to all
material personal property owned by each of them, in each case free and
clear of any security interests, liens, encumbrances, equities, claims
and other defects, except such as do not materially and adversely affect
the value of such property and do not interfere with the use made or
proposed to be made of such property by the Company or its subsidiaries,
and the Company and its subsidiaries have valid, subsisting and
enforceable leases for the properties described in the Final Memorandum
as leased by them, with exceptions in each case as are not material and
do not interfere with the business of the Company and its subsidiaries,
taken as a whole, in each case except as described in or contemplated by
the Final Memorandum.
(k) No labor dispute with the employees of the Company or any of
its subsidiaries exists or, to the knowledge of the Company or any of
its Subsidiary Guarantors, is threatened or imminent that would result
in a Material Adverse Effect, except as described in or contemplated by
the Final Memorandum.
(l) The Company and each of its subsidiaries are insured by
insurers of recognized financial responsibility against such losses and
risks and in such amounts as are prudent and customary in the businesses
in which they are engaged; and neither the Company nor any of its
subsidiaries has any reason to believe that it will not be able to renew
its existing insurance coverage as and when such coverage expires or to
obtain similar coverage from similar insurers as may be necessary to
continue its business at a cost that would not result in a Material
Adverse Effect, except as described in or contemplated by the Final
Memorandum.
(m) No subsidiary of the Company is currently prohibited,
directly or indirectly, from paying any dividends to the Company, from
making any other distribution on such subsidiary's capital stock, from
repaying to the Company any loans or advances to such subsidiary from
the Company or from transferring any of such subsidiary's property or
assets to the Company, except as described in the Final Memorandum.
(n) The Company and its subsidiaries possess all certificates,
authorizations and permits issued by the appropriate federal, state or
foreign regulatory authorities required to conduct their respective
businesses except for those the failure to possess which, individually
or in the aggregate, would not have a Material Adverse Effect, and
neither the Company nor any of its subsidiaries has received any notice
of proceedings relating to the revocation or modification of any such
certificate, authorization or permit which, singly or in the aggregate,
if the subject of an unfavorable decision, ruling or finding, would
result in a Material Adverse Effect, except as described in or
contemplated by the Final Memorandum.
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(o) The Company and its subsidiaries have filed all foreign,
federal, state and local tax returns that are required to be filed
through the date hereof or have requested extensions thereof and have
paid all taxes (other than immaterial amounts of franchise taxes with
respect to immaterial subsidiaries and immaterial amounts of severance
taxes) required to be paid by them and any other assessment, fine or
penalty levied against them, to the extent that any of the foregoing is
due and payable, except where the failure to pay such assessment, fine
or penalty levied against them would not singly or in the aggregate have
a Material Adverse Effect and except for any such assessment, fine or
penalty that is currently being contested in good faith or as described
in or contemplated by the Final Memorandum.
(p) Neither the Company nor any of its subsidiaries is in
violation of any federal or state law or regulation relating to
occupational safety and health or to the storage, handling or
transportation of hazardous or toxic materials, and the Company and its
subsidiaries have received all permits, licenses or other approvals
required of them under applicable federal and state occupational safety
and health and environmental laws and regulations to conduct their
respective businesses, and the Company and its subsidiaries are in
compliance with all terms and conditions of any such permit, license or
approval, except any such violation of law or regulation, failure to
receive required permits, licenses or other approvals or failure to
comply with the terms and conditions of such permits, licenses or
approvals which would not, singly or in the aggregate, result in a
Material Adverse Effect, except as described in or contemplated by the
Final Memorandum.
(q) The Company and each of its subsidiaries maintain a system of
internal accounting controls sufficient to provide reasonable assurance
that (i) transactions are executed in accordance with management's
general or specific authorizations; (ii) transactions are recorded as
necessary to permit preparation of financial statements in conformity
with generally accepted accounting principles and to maintain asset
accountability; (iii) access to assets is permitted only in accordance
with management's general or specific authorization; and (iv) the
recorded accountability for assets is compared with the existing assets
at reasonable intervals and appropriate action is taken with respect to
any differences.
(r) No default exists, and no event has occurred which, with
notice or lapse of time or both, would constitute a default in the due
performance and observance of any terms, covenant or condition of any
indenture, mortgage, deed of trust, lease or other agreement or
instrument to which the Company or any of its subsidiaries is a party or
by which the Company or any of its subsidiaries or any of their
respective properties is bound or may be affected in any material
adverse respect with regard to property, business or operations of the
Company and its subsidiaries, taken as a whole, except for such defaults
that would not result in a Material Adverse Effect.
(s) The Indenture has been duly and validly authorized and the
Registration
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Agreement, the Securities and the Subsidiary Guarantees have been duly
and validly authorized and, in the case of the Indenture and the
Registration Agreement, when duly executed and delivered by the parties
thereto and, in the case of the Securities, when duly issued,
authenticated and delivered in accordance with the terms of the
Indenture, endorsed by each Subsidiary Guarantor and paid for in
accordance with the terms of this Agreement, (A) the Securities will be
validly issued and outstanding and will constitute valid and binding
obligations of the Company enforceable against the Company in accordance
with their terms and entitled to the benefits of the Indenture and the
Registration Agreement and (B) the Subsidiary Guarantees will constitute
valid and binding obligations of the Subsidiary Guarantors enforceable
against the Subsidiary Guarantors in accordance with their terms,
subject to the effects of bankruptcy, insolvency, fraudulent conveyance,
moratorium, reorganization or other similar laws or court decisions
relating to or affecting the rights of creditors generally or of general
principles of equity (whether considered in a proceeding in equity or at
law). The Securities, the Subsidiary Guarantees, the Indenture and the
Registration Agreement conform in all material respects to the
description thereof contained in the Final Memorandum.
(t) Except as may otherwise be disclosed in the Final Memorandum,
the Company and its subsidiaries conduct their business in compliance
with all applicable laws, rules and regulations of the jurisdictions in
which they are conducting business, except where the failure to be so in
compliance would not have a Material Adverse Effect.
(u) The Final Memorandum, at the date hereof, does not, and at
the Closing Date (as defined below) will not (and any amendment or
supplement thereto, at the date thereof and at the Closing Date, will
not), contain any untrue statement of a material fact or omit to state
any material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading;
provided, however, that no representation or warranty is made by the
Company and its subsidiaries with respect to the information contained
in or omitted from the Final Memorandum, or any amendment or supplement
thereto, in reliance upon and in conformity with information furnished
in writing to the Company or the Subsidiary Guarantors by or on behalf
of the Initial Purchasers specifically for inclusion therein.
(v) Neither the Company, the Subsidiary Guarantors nor any of
their respective Affiliates (as defined in Rule 501(b) of Regulation D
under the Securities Act ("Regulation D")), nor any person acting on its
or their behalf (provided that no representation is made as to the
Initial Purchasers or any person acting on its behalf), has, directly or
indirectly, (i) sold, offered for sale, solicited offers to buy or
otherwise negotiated in respect of any security (as defined in the
Securities Act) which is or will be integrated with the sale of the
Securities and requires registration of the Securities under the
Securities Act or (ii) engaged in any form of general solicitation or
general advertising (within the meaning of Regulation D) in connection
with the offering of the Securities.
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(w) Assuming the Securities are issued, sold and delivered as
contemplated by the Final Memorandum and this Agreement; that each of
the representations, warranties and covenants of the Initial Purchasers
contained in this Agreement are true, correct and complete; and that the
Initial Purchasers comply with the covenants in this Agreement, it is
not necessary in connection with the offer and sale and delivery of the
Securities in the manner contemplated by this Agreement and the Final
Memorandum to register the Securities or the Subsidiary Guarantees under
the Securities Act or to qualify the Indenture under the Trust Indenture
Act.
(x) The Securities satisfy the eligibility requirements of Rule
144A(d)(3) under the Securities Act.
(y) The Company has been advised by the National Association of
Securities Dealers, Inc. PORTAL Market that the Initial Purchasers will
have the Securities designated PORTAL eligible securities in accordance
with the rules and regulations of the National Association of Securities
Dealers, Inc.
(z) Neither the Company nor any Subsidiary Guarantor is an
"investment company" within the meaning of the Investment Company Act of
1940, as amended (the "Investment Company Act"), without taking account
of any exemption arising out of the number of holders of the Company's
or the Subsidiary Guarantors' securities.
(aa) Neither the Company nor any Subsidiary Guarantor has paid or
agreed to pay to any person any compensation for soliciting another to
purchase any securities of the Company or the Subsidiary Guarantors
(except as contemplated by this Agreement).
(bb) The information provided by the Company pursuant to Section
5(h) hereof will not, at the date thereof, contain any untrue statement
of a material fact or omit to state any material fact necessary to make
the statements therein, in the light of the circumstances under which
they were made, not misleading.
(cc) To the knowledge of the Company and each of the Subsidiary
Guarantors, except as described in the Final Memorandum and except as
would not reasonably be expected to result in a Material Adverse Effect,
(A) neither the Company nor any of its subsidiaries is in violation of,
or has received any notice that it is subject to liability under, any
federal, state, local or foreign statute, law, rule, regulation,
ordinance, code or rule of common law or any judicial or administrative
interpretation thereof, including any judicial or administrative order,
decree, judgment or injunction relating to pollution or protection of
human health or the environment (including, without limitation, ambient
air, indoor air, surface water, groundwater, land surface or subsurface
strata and natural resources), including, without limitation, those
relating to the release or threatened release of chemicals, pollutants,
contaminants, wastes, toxic substances, hazardous substances or
constituents, petroleum or petroleum products (collectively, "Hazardous
Materials") or to the manufacture, processing, distribution, use,
treatment, storage, disposal, transport or
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handling of Hazardous Materials (collectively, "Environmental Laws"),
(B) the Company and its subsidiaries have all permits, licenses,
authorizations and approvals required under any applicable Environmental
Laws, all of which are in full force and effect, and are each in
compliance with any applicable Environmental Laws, (C) neither the
Company nor any subsidiary has received notice that there are any
pending or threatened administrative, regulatory or judicial actions,
suits, demands, demand letters, claims, liens, notices of noncompliance,
violation or potential responsibility or liability, investigation or
proceedings pursuant to any Environmental Laws against the Company or
any of its subsidiaries, or any of their respective
predecessors-in-interest for which the Company or any of its
subsidiaries is liable and (D) neither the Company nor any subsidiary
has received notice that there are any past or present events,
conditions or circumstances which have been alleged to form the basis of
an order to conduct responsive or corrective action, or an action, suit
or proceeding by any private party or governmental agency, against or
affecting, or requiring capital or operating expenditures by, the
Company or any of the subsidiaries pursuant to any Environmental Laws.
2. Purchase and Sale. Subject to the terms and conditions and in
reliance upon the representations and warranties herein set forth, the Company
agrees to sell to each Initial Purchaser, and each Initial Purchaser agrees,
severally and not jointly, to purchase from the Company, at a purchase price of
102.00% of the principal amount thereof, the principal amount of Securities set
forth opposite such Initial Purchaser's name in Schedule II hereto.
3. Delivery and Payment. Delivery of and payment for the Securities
shall be made at 10:00 AM, New York City time, on December 8, 1998, or such
later date as the Initial Purchasers shall designate, which date and time may be
postponed by agreement between the Initial Purchasers and the Company (such date
and time of delivery and payment for the Securities being herein called the
"Closing Date"). Delivery of the Securities shall be made to the Initial
Purchasers against payment by the Initial Purchasers of the purchase price
thereof to or upon the order of the Company by wire transfer in federal
(same-day) funds or such other manner of payment as may be agreed by the Company
and the Initial Purchasers. Delivery of the Securities shall be made at such
location as the Initial Purchasers shall reasonably designate at least one
business day in advance of the Closing Date and payment for the Securities shall
be made at the office of Cahill Gordon & Reindel ("Counsel for the Initial
Purchasers"), 80 Pine Street, New York, New York or such other place as the
parties may otherwise agree. Certificates for the Securities shall be registered
in such names and in such denominations as the Initial Purchasers may request
not less than three full business days in advance of the Closing Date.
The Company agrees to have the Securities available for inspection,
checking and packaging by the Initial Purchasers in New York, New York, not
later than 1:00 PM, New York City time, on the business day prior to the Closing
Date.
4. Offering of Securities. Each Initial Purchaser represents and
warrants to and agrees with the Company that:
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(a) It has not offered or sold, and will not offer or sell, any
Securities except to those it reasonably believes to be qualified
institutional buyers (as defined in Rule 144A under the
Securities Act) and that, in connection with each such sale, it has
taken or will take reasonable steps to ensure that the purchaser of such
Securities is aware that such sale is being made in reliance on
Rule 144A.
(b) Neither it nor any person acting on its behalf has made or
will make offers or sales of the Securities in the United States by
means of any form of general solicitation or general advertising within
the meaning of Regulation D in the United States.
5. Agreements. The Company and each of the Subsidiary Guarantors agrees
with each Initial Purchaser that:
(a) The Company will furnish to each Initial Purchaser and to
Counsel for the Initial Purchasers, without charge, during the period
referred to in paragraph (c) below, as many copies of the Final
Memorandum (including any documents incorporated by reference therein)
and any amendments and supplements thereto as they may reasonably
request. The Company will pay the expenses of printing or other
production of all documents relating to the offering.
(b) The Company will not amend or supplement the Final Memorandum
without the prior written consent of the Initial Purchasers.
(c) If at any time prior to the completion of the sale of the
Securities by the Initial Purchasers, any event occurs as a result of
which the Final Memorandum, as then amended or supplemented, would
include any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading, or if it
should be necessary to amend or supplement the Final Memorandum to
comply with applicable law, the Company will promptly notify the Initial
Purchasers of the same and, subject to the requirements of paragraph (b)
of this Section 5, will prepare and provide to the Initial Purchasers
pursuant to paragraph (a) of this Section 5 an amendment or supplement
which will correct such statement or omission or effect such compliance.
(d) The Company will arrange for the qualification of the
Securities for sale by the Initial Purchasers under the laws of such
jurisdictions as the Initial Purchasers may designate and will maintain
such qualifications in effect so long as required for the sale of the
Securities. Each of the Company and the Subsidiary Guarantors will
promptly advise the Initial Purchasers of the receipt by the Company of
any notification with respect to the suspension of the qualification of
the Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose.
(e) The Company and the Subsidiary Guarantors will not, and will
not permit any of their respective Affiliates to, resell any Securities
which constitute "restricted
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securities" under Rule 144 that have been acquired by any of them.
(f) Neither the Company, nor any of its Affiliates, nor any
person acting on its or their behalf will, directly or indirectly, make
offers or sales of any security, or solicit offers to buy any security,
under circumstances the offering of which security will be integrated
with the sale of the Securities in a manner that would require the
registration of the Securities under the Securities Act.
(g) Neither the Company, nor any of its Affiliates, nor any
person acting on its or their behalf will engage in any form of general
solicitation or general advertising (within the meaning of Regulation D)
in connection with any offer or sale of the Securities in the United
States.
(h) So long as any of the Securities are "restricted securities"
within the meaning of Rule 144(a)(3) under the Securities Act, the
Company will, during any period in which it is not subject to and in
compliance with Section 13 or 15(d) of the Exchange Act, provide to each
holder of such restricted securities and to each prospective purchaser
(as designated by such holder) of such restricted securities, upon the
request of such holder or prospective purchaser, any information
required to be provided by Rule 144A(d)(4) under the Securities Act.
This covenant is intended to be for the benefit of the holders, and the
prospective purchasers designated by such holders, from time to time of
such restricted securities.
(i) Neither the Company, nor any of its Affiliates, nor any
person acting on its or their behalf will engage in any directed selling
efforts with respect to the Securities, and each of them will comply
with the offering restrictions requirement of Regulation S. Terms used
in this paragraph have the meanings given to them by Regulation S.
(j) The Company will cooperate with the Initial Purchasers and
use its best efforts to permit the Securities to be eligible for
clearance and settlement through The Depository Trust Company.
(k) The Company will not, until 90 days following the Closing
Date, without the prior written consent of the Initial Purchasers,
offer, sell or contract to sell, or otherwise dispose of, directly or
indirectly, or announce the offering of, any debt securities issued or
guaranteed by the Company or any of its subsidiaries (other than the
Securities and the Exchange Notes (as defined in the Final Memorandum));
provided, however, that the foregoing will not apply to borrowings from
banks under bank credit facilities or to the issuance of debt securities
to the seller of assets or businesses acquired by the Company or
subsidiaries as part of the purchase price therefor provided that each
seller agrees not to resell such debt securities for a period of 90 days
following the Closing Date.
(l) The Company will apply the net proceeds from the sale of the
Securities
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sold by it substantially in accordance with its statements under the
caption "Use of Proceeds" in the Final Memorandum.
6. Conditions to the Obligations of the Initial Purchasers. The
obligations of the Initial Purchasers to purchase the Securities shall be
subject to the accuracy, in all material respects, of the representations and
warranties on the part of the Company and the Subsidiary Guarantors contained
herein at the date and time that this Agreement is executed and delivered by the
parties hereto (the "Execution Time") and the Closing Date, to the accuracy of
the statements of the Company and the Subsidiary Guarantors made in any
certificates pursuant to the provisions hereof, to the performance by the
Company and the Subsidiary Guarantors of their obligations hereunder and to the
following additional conditions:
(a) The Company shall have furnished to the Initial Purchasers
the opinion of Dykema Gossett PLLC, counsel for the Company and the
Subsidiary Guarantors, dated the Closing Date, to the effect that
(i) each of the Company and the Subsidiary Guarantors has
been duly incorporated or organized and is validly existing as a
corporation or limited liability company in good standing under
the laws of the jurisdiction in which it is chartered or
organized, with full corporate power and authority to own its
properties and conduct its business as described in the Final
Memorandum, and is duly qualified to do business as a foreign
corporation or limited liability company and is in good standing
under the laws of each jurisdiction listed on Schedule I hereto;
(ii) the Indenture has been duly authorized, executed and
delivered, and constitutes a legal, valid and binding instrument
enforceable against the Company and the Subsidiary Guarantors in
accordance with its terms (subject, as to the enforcement of
remedies, to applicable bankruptcy, reorganization, insolvency,
moratorium or other laws affecting creditors' rights generally
from time to time in effect) except that such counsel shall
express no opinion concerning the enforceability of waivers or
defenses therein; the Securities and the Subsidiary Guarantees
are in the form contemplated by the Indenture and have been duly
and validly authorized and, when the Securities are executed and
authenticated in accordance with the provisions of the Indenture
and delivered to and paid for by the Initial Purchasers pursuant
to this Agreement, will constitute legal, valid and binding
obligations of the Company and the Subsidiary Guarantors entitled
to the benefits of the Indenture, subject to the effects of
bankruptcy, insolvency, fraudulent conveyance, moratorium,
reorganization or other similar laws or court decisions relating
to or affecting the rights of creditors generally or of general
principles of equity (whether considered in a proceeding in
equity or at law);
(iii) insofar as the Final Memorandum contains a
discussion of specific
13
-13-
legal proceedings or regulatory matters, including the
information set forth in the Final Memorandum under the headings
"Business - Regulatory Matters" and "Legal Proceedings," each in
the Form 10-K dated March 31, 1998, and "Description of Certain
Indebtedness," to such counsel's knowledge such discussion fairly
summarizes the matters therein described;
(iv) this Agreement has been duly authorized, executed and
delivered by the Company and the Subsidiary Guarantors;
(v) to such counsel's knowledge, no consent, approval,
authorization or order of any court or governmental agency or
body is required for the consummation of the transactions
contemplated herein, except such as may be required under the
blue sky or securities laws of any jurisdiction in connection
with the purchase and sale of the Securities by the Initial
Purchasers;
(vi) none of the issue and sale of the Securities, the
execution and delivery of the Indenture, the issuance of the
Subsidiary Guarantees, the consummation of any other of the
transactions herein or therein contemplated nor the fulfillment
of the terms hereof or thereof will conflict with, result in a
breach or violation of, or constitute a default under any Law
applicable to the Company or the charter or by-laws of the
Company or the Subsidiary Guarantors or the terms of any
indenture or other agreement or instrument known to such counsel
and to which the Company or any of its subsidiaries is a party or
bound or any judgment, order or decree known to such counsel to
be applicable to the Company or any of its subsidiaries of any
court, regulatory body, administrative agency, governmental body
or arbitrator having jurisdiction over the Company or any of its
subsidiaries except to the extent any such breach, violation or
default will not have a Material Adverse Effect;
(vii) assuming the accuracy of the representations and
warranties and compliance with the agreements contained herein,
no registration of the Securities or the Subsidiary Guarantees
under the Securities Act is required, and no qualification of the
Indenture or the Subsidiary Guarantees under the Trust Indenture
Act is necessary, for the offer and sale by the Initial
Purchasers of the Securities in the manner contemplated by this
Agreement;
(viii) neither the Company nor any of the Subsidiary
Guarantors is an "investment company" within the meaning of the
Investment Company Act without taking account of any exemption
arising out of the number of holders of the Company's or the
Subsidiary Guarantors' securities; and
(ix) to the best of such counsel's knowledge, there are no
legal or governmental actions, suits or proceedings pending or
threatened to which the Company or any of its subsidiaries is or
is threatened to be made a party or of
14
-14-
which property owned or leased by the Company or any of its
subsidiaries is or is threatened to be made the subject, which
actions, suits or proceedings could, individually or in the
aggregate, prevent or adversely affect the transactions
contemplated by the Transaction Documents or the Securities or
result in a Material Adverse Effect in the condition (financial
or otherwise) of the Company; and except as may otherwise be
described in the Final Memorandum, neither the Company nor any of
its subsidiaries is a party or subject to the provisions of any
injunction, judgment, decree or order of any court, regulatory
body, administrative agency or other governmental body which
could have a Material Adverse Effect on the condition (financial
or otherwise) of the Company.
Such counsel shall also state that although such counsel has not
undertaken, except as otherwise indicated in their opinion, to determine
independently, and does not assume any responsibility for, the accuracy,
completeness or fairness of the statements contained or incorporated by
reference in the Final Memorandum, such counsel has participated in the
preparation of the Final Memorandum, including review and discussion of
the contents thereof, and nothing has come to the attention of such
counsel that has caused them to believe that at the Execution Time the
Final Memorandum, including the documents incorporated by reference
therein, contained an untrue statement of material fact or omitted to
state a material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which they
were made, not misleading or that any amendment or supplement to the
Final Memorandum, as of its respective date, and as of the Closing Date
contained any untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary in order to
make the statements therein, in light of the circumstances under which
they were made, not misleading (it being understood that such counsel
need express no opinion with respect to the financial statements and the
notes thereto and the schedules and other financial and statistical data
included or incorporated by reference in the Final Memorandum).
In rendering such opinion, such counsel may rely (A) as to
matters involving the application of laws of any jurisdiction other than
the State of New York, the State of Michigan or the United States, to
the extent they deem proper and specified in such opinion, upon the
opinion of other counsel of good standing whom they reasonably believe
to be reliable and who are satisfactory to counsel for the Initial
Purchasers and (B) as to matters of fact, to the extent they deem
proper, on certificates of responsible officers of the Company and
public officials.
All references in this Section 6(a) to the Final Memorandum shall be
deemed to include any amendment or supplement thereto at the Closing Date.
(b) The Initial Purchasers shall have received from Counsel for
the Initial Purchasers such opinion or opinions, dated the Closing Date,
with respect to the issuance and sale of the Securities, the Final
Memorandum (as amended or supplemented at the
15
-15-
Closing Date) and other related matters as the Initial Purchasers may
reasonably require, and the Company shall have furnished to such counsel
such documents as they request for the purpose of enabling them to pass
upon such matters.
(c) The Company shall have furnished to the Initial Purchasers a
certificate of the Company, signed by the Chairman of the Board or the
President and the principal financial or accounting officer of the
Company, dated the Closing Date, to the effect that the signers of such
certificate have carefully examined the Final Memorandum, any amendment
or supplement to the Final Memorandum and this Agreement and that:
(i) the representations and warranties of the Company and
the Subsidiary Guarantors in this Agreement are true and correct
in all material respects on and as of the Closing Date with the
same effect as if made on the Closing Date, and the Company and
the Subsidiary Guarantors have complied with all the agreements
and satisfied all the conditions on its part to be performed or
satisfied hereunder at or prior to the Closing Date; and
(ii) since the date of the most recent financial
statements included in the Final Memorandum, there has been no
material adverse change in the condition (financial or other),
earnings, business or properties of the Company and its
subsidiaries, whether or not arising from transactions in the
ordinary course of business, except at set forth in or
contemplated by the Final Memorandum (exclusive of any amendment
or supplement thereto).
(d) At the Closing Date, PricewaterhouseCoopers LLP shall have furnished
to the Initial Purchasers a letter or letters dated as of the Closing
Date, in form and substance satisfactory to the Initial Purchasers.
(e) The Company shall have furnished to the Initial Purchasers the
opinion of Fasken Campbell Godfrey, special Canadian counsel for the
Company and the Subsidiary Guarantors incorporated in Ontario, dated the
Closing Date, substantially in the form of Exhibit A hereto.
(f) On or prior to the Closing Date, the Company and the Subsidiary
Guarantors shall have furnished to the Initial Purchasers such further
information, certificates and documents as the Initial Purchasers may
reasonably request.
(g) On or prior to the Closing Date, the Registration Agreement shall
have been executed substantially in the form hereto delivered to you and
shall have been delivered to you and the Trustee.
If any of the conditions specified in this Section 6 shall not have been
fulfilled in all material respects when and as provided in this Agreement, or if
any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects
16
-16-
reasonably satisfactory in form and substance to the Initial Purchasers and
Counsel for the Initial Purchasers, this Agreement and all obligations of the
Initial Purchasers hereunder may be canceled at, or at any time prior to, the
Closing Date by the Initial Purchasers. Notice of such cancellation shall be
given to the Company in writing or by telephone or telegraph confirmed in
writing.
The documents required to be delivered by this Section 6 will be
delivered at the office of Counsel for the Initial Purchasers, at 80 Pine
Street, New York, New York, on the Closing Date.
7. Reimbursement of Expenses. If the sale of the Securities provided for
herein is not consummated because any condition to the obligations of the
Initial Purchasers set forth in Section 6 hereof is not satisfied, because of
any termination pursuant to Section 10 hereof or because of any refusal,
inability or failure on the part of the Company or the Subsidiary Guarantors to
perform any agreement herein or comply with any provision hereof other than by
reason of a default by the Initial Purchasers in payment for the Securities on
the Closing Date, the Company and the Subsidiary Guarantors will, jointly and
severally, reimburse the Initial Purchasers severally upon demand for all
reasonable out-of-pocket expenses (including reasonable fees and disbursements
of Cahill Gordon & Reindel) that shall have been incurred by them in connection
with the proposed purchase and sale of the Securities.
8. Indemnification and Contribution. (a) The Company and the Subsidiary
Guarantors, jointly and severally, agree to indemnify and hold harmless each
Initial Purchaser, the directors, officers, employees and agents of each Initial
Purchaser and each person who controls any Initial Purchaser within the meaning
of either the Securities Act or the Exchange Act against any and all losses,
claims, damages or liabilities, joint or several, to which they or any of them
may become subject under the Securities Act, the Exchange Act or other Federal
or state statutory law or regulation, at common law or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue statement
of a material fact contained in the Final Memorandum or any information provided
by the Company to any holder or prospective purchaser of the Securities pursuant
to Section 5(h) hereof, or in any amendment thereof 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, in the light of the circumstances under which they were
made, not misleading, and agrees to reimburse each such indemnified party, as
incurred, for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that neither the Company nor the
Subsidiary Guarantors will be liable in any such case to the extent that any
such loss, claim, damage or liability arises out of or is based upon any such
untrue statement or alleged untrue statement or omission or alleged omission
made in the Final Memorandum, or in any amendment thereof or supplement thereto,
in reliance upon and in conformity with written information furnished to the
Company by or on behalf of the Initial Purchasers specifically for inclusion
therein.
(b) Each Initial Purchaser severally and not jointly agrees to indemnify
and hold
17
-17-
harmless each of the Company and the Subsidiary Guarantors, their respective
directors, officers and each person who controls the Company or a Subsidiary
Guarantor within the meaning of either the Securities Act or the Exchange Act,
to the same extent as the foregoing indemnity from the Company and the
Subsidiary Guarantors to each Initial Purchaser, but only with reference to
written information relating to such Initial Purchaser furnished to the Company
by or on behalf of the Initial Purchasers specifically for inclusion in the
Final Memorandum (or in any amendment or supplement thereto). This indemnity
agreement will be in addition to any liability which any Initial Purchaser may
otherwise have. The Company and the Subsidiary Guarantors acknowledge that the
statements set forth in the last paragraph of the cover page and under the
heading "Plan of Distribution" in the Final Memorandum constitute the only
information furnished in writing by or on behalf of the Initial Purchasers for
inclusion in the Final Memorandum (or in any amendment or supplement thereto).
(c) Promptly after receipt by an indemnified party under this Section 8
of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 8, notify the indemnifying party in writing of the commencement thereof;
but the failure so to notify the indemnifying party (i) will not relieve it from
liability under paragraph (a) or (b) above unless and to the extent it did not
otherwise learn of such action and such failure results in the forfeiture by the
indemnifying party of substantial rights and defenses and (ii) will not, in any
event, relieve the indemnifying party from any obligations to any indemnified
party other than the indemnification obligation provided in paragraph (a) or (b)
above. The indemnifying party shall be entitled to appoint counsel of the
indemnifying party's choice at the indemnifying party's expense to represent the
indemnified party in any action for which indemnification is sought (in which
case the indemnifying party shall not thereafter be responsible for the fees and
expenses of any separate counsel retained by the indemnified party or parties
except as set forth below); provided, however, that such counsel shall be
reasonably satisfactory to the indemnified party. Notwithstanding the
indemnifying party's election to appoint counsel to represent the indemnified
party in an action, the indemnified party shall have the right to employ
separate counsel (including local counsel), and the indemnifying party shall
bear the reasonable fees, costs and expenses of such separate counsel if (i) the
use of counsel chosen by the indemnifying party to represent the indemnified
party would present such counsel with a conflict of interest, (ii) the actual or
potential defendants in, or targets of, any such action include both the
indemnified party and the indemnifying party and the indemnified party shall
have reasonably concluded on the advice of counsel that there may be legal
defenses available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party, (iii) the
indemnifying party shall not have employed counsel reasonably satisfactory to
the indemnified party to represent the indemnified party within a reasonable
time after notice of the institution of such action or (iv) the indemnifying
party shall authorize the indemnified party to employ separate counsel at the
expense of the indemnifying party. An indemnifying party will not, without the
prior written consent of the indemnified parties, settle or compromise or
consent to the entry of any judgment with respect to any pending or threatened
claim, action, suit or proceeding in respect of which indemnification or
contribution may be sought hereunder (whether or not the indemnified parties are
actual or potential parties to such claim or action) unless such settlement,
compromise or
18
-18-
consent includes an unconditional release of each indemnified party from all
liability arising out of such claim, action, suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a) or (b) of
this Section 8 is unavailable to or insufficient to hold harmless an indemnified
party for any reason, the Company and the Subsidiary Guarantors on the one hand
and the Initial Purchasers on the other hand agree to contribute to the
aggregate losses, claims, damages and liabilities (including legal or other
expenses reasonably incurred in connection with investigating or defending same)
(collectively, "Losses") to which the Company and the Subsidiary Guarantors or
the Initial Purchasers, as applicable, may be subject in such proportion as is
appropriate to reflect the relative benefits received by the Company and the
Subsidiary Guarantors on the one hand or the Initial Purchasers on the other
hand from the offering of the Securities. If the allocation provided by the
immediately preceding sentence is unavailable for any reason, the Company and
the Subsidiary Guarantors on one hand and the Initial Purchasers on the other
hand shall contribute in such proportion as is appropriate to reflect not only
such relative benefits but also the relative fault of the Company and the
Subsidiary Guarantors or the Initial Purchasers, as applicable, in connection
with the statements or omissions which resulted in such Losses as well as any
other relevant equitable considerations. Benefits received by the Company and
the Subsidiary Guarantors shall be deemed to be equal to the proceeds from the
offering net of purchase discounts and commissions (before deducting expenses),
and benefits received by the Initial Purchasers shall be deemed to be equal to
the total purchase discounts and commissions received by the Initial Purchasers
from the Company in connection with the purchase of the Securities hereunder.
Relative fault shall be determined by reference to whether any alleged untrue
statement or omission relates to information provided by the Company, the
Subsidiary Guarantors or the Initial Purchasers. The Company, the Subsidiary
Guarantors and the Initial Purchasers agree that it would not be just and
equitable if contribution were determined by pro rata allocation or any other
method of allocation which does not take account of the equitable considerations
referred to above. Notwithstanding the provisions of this paragraph (d), (i) in
no case shall any Initial Purchaser be responsible for any amount in excess of
the purchase discount or commission applicable to the Securities purchased by
such Initial Purchaser hereunder and (ii) no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 8, each person who
controls the Initial Purchasers within the meaning of either the Securities Act
or the Exchange Act and each director, officer, employee and agent of the
Initial Purchasers shall have the same rights to contribution as the Initial
Purchasers, and each person who controls the Company or the Subsidiary
Guarantors within the meaning of either the Securities Act or the Exchange Act
and each officer and director of the Company or the Subsidiary Guarantors shall
have the same rights to contribution as the Company and the Subsidiary
Guarantors, subject in each case to the applicable terms and conditions of this
paragraph (d).
9. Default by an Initial Purchaser. If any one or more Initial
Purchasers shall fail to purchase and pay for any of the Securities agreed to be
purchased by such Initial Purchaser hereunder and such failure to purchase shall
constitute a default in the performance of its or their
19
-19-
obligations under this Agreement, the remaining Initial Purchasers shall be
obligated severally to take up and pay for (in the respective proportions which
the principal amount of Securities set forth opposite their names in Schedule II
hereto bears to the aggregate principal amount of Securities set forth opposite
the names of all the remaining Initial Purchasers) the Securities which the
defaulting Initial Purchaser or Initial Purchasers agreed but failed to
purchase; provided, however, that in the event that the aggregate principal
amount of Securities which the defaulting Initial Purchaser or Initial
Purchasers agreed but failed to purchase shall exceed 10% of the aggregate
principal amount of Securities set forth in Schedule II hereto, the remaining
Initial Purchasers shall have the right to purchase all, but shall not be under
any obligation to purchase any, of the Securities, and if such non-defaulting
Initial Purchasers do not purchase all the Securities, this Agreement will
terminate without liability to any non-defaulting Initial Purchaser or the
Company. In the event of a default by any Initial Purchaser as set forth in this
Section 9, the Closing Date shall be postponed for such period, not exceeding
seven days, as the Initial Purchasers shall determine in order that the required
changes in the Final Memorandum or in any other documents or arrangements may be
effected. Nothing contained in this Agreement shall relieve any defaulting
Initial Purchaser of its liability, if any, to the Company or any non-defaulting
Initial Purchaser for damages occasioned by its default hereunder.
10. Termination. Termination. This Agreement shall be subject to
termination in the absolute discretion of the Initial Purchasers, by notice
given to the Company prior to delivery of and payment for the Securities, if
prior to such time (i) any of the Company's securities shall have been suspended
by the Commission or trading in securities generally on the New York Stock
Exchange or the NASDAQ National Market shall have been suspended or limited or
minimum prices shall have been established on either of such exchanges, (ii) a
banking moratorium shall have been declared either by Federal or New York State
authorities or (iii) there shall have occurred any outbreak or escalation of
hostilities, declaration by the United States of a national emergency or war or
other calamity or crisis the effect of which on financial markets is such as to
make it, in the judgment of the Initial Purchasers, impracticable or inadvisable
to proceed with the offering or delivery of the Securities as contemplated by
the Final Memorandum.
11. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Company, the Subsidiary Guarantors or their respective officers and of the
Initial Purchasers set forth in or made pursuant to this Agreement will remain
in full force and effect, regardless of any investigation made by or on behalf
of the Initial Purchasers or the Company, the Subsidiary Guarantors or any of
their respective officers, directors or controlling persons referred to in
Section 8 hereof, and will survive delivery of and payment for the Securities.
The provisions of Sections 7 and 8 hereof shall survive the termination or
cancellation of this Agreement.
12. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Initial Purchasers, will be
mailed, delivered or telegraphed and confirmed to them, care of Bear, Stearns &
Co. Inc., 245 Park Avenue, New York, New York 10167; or, if sent to the Company,
will be mailed, delivered or telegraphed and confirmed to it at Oxford
Automotive, Inc., 1250 Stephenson Highway, Troy, Michigan 48083.
20
-20-
13. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the officers
and directors and controlling persons referred to in Section 8 hereof, and,
except as expressly set forth in Section 5(h) hereof, no other person will have
any right or obligation hereunder.
14. Applicable Law. This Agreement will be governed by and construed in
accordance with the laws of the State of New York without regard to principles
of conflicts of law thereof.
15. Business Day. For purposes of this Agreement, "business day" means
each Monday, Tuesday, Wednesday, Thursday and Friday that is not a day on which
banking institutions in the City of New York, New York are authorized or
obligated by law, executive order or regulation to close.
16. Counterparts. This Agreement may be executed in one or more
counterparts, each of which will be deemed to be an original, but all such
counterparts will together constitute one and the same instrument.
21
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If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this Agreement and your acceptance shall represent a binding agreement among the
Company, the Subsidiary Guarantors and the Initial Purchasers.
Very truly yours,
OXFORD AUTOMOTIVE, INC.
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
BMG NORTH AMERICA LIMITED
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
LOBDELL EMERY CORPORATION
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
WINCHESTER FABRICATION CORPORATION
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
CREATIVE FABRICATION CORPORATION
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
22
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BMG HOLDINGS INC.
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
LASERWELD INTERNATIONAL, L.L.C.
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
PARALLEL GROUP INTERNATIONAL,
INC.
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
CONCEPT MANAGEMENT CORPORATION
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
LEWIS EMERY CAPITAL CORPORATION
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
RPI HOLDINGS, INC.
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
23
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HOWELL INDUSTRIES, INC.
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
OXFORD SUSPENSION, INC.
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
RPI, INC.
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
PRUDENVILLE MANUFACTURING, INC.
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
OXFORD SUSPENSION LTD.
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
24
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The foregoing Agreement is hereby confirmed and accepted as of the date
first above written.
BEAR, STEARNS & CO. INC.
BT ALEX. BROWN INCORPORATED
MORGAN STANLEY & CO. INCORPORATED
By: BEAR, STEARNS & CO. INC.
--------------------------------------
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
25
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SCHEDULE I
1. Lobdell Emery Corporation, a Michigan corporation, is authorized to
transact business in the State of Indiana.
2. Howell Industries, Inc., a Michigan corporation, is authorized to
transact business in the State of Ohio.
26
-26-
SCHEDULE II
Principal Amount of
Securities to Be
Initial Purchasers Purchased
Bear, Stearns & Co. Inc. $22,000,000
BT Alex. Brown Incorporated 14,000,000
Morgan Stanley & Co. Incorporated 4,000,000
-----------
$40,000,000
===========
27
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Annex 1
[BEAR, STEARNS & CO. INC. LETTERHEAD]
December 1, 1998
PricewaterhouseCoopers LLP
Suite 200
2050 N. Woodward Ave.
Bloomfield Hills, MI 48304-2260
Ladies and Gentlemen:
The undersigned, as initial purchasers (the "Initial Purchasers") of
10-1/8% Senior Subordinated Notes Due 2007 of Oxford Automotive, Inc. (the
"Company"), have reviewed and will be reviewing certain information relating to
the Company that will be included in the Company's Final Memorandum, which may
be delivered to investors and utilized by them as a basis for their investment
decision. This review process, applied to the information relating to the
Company, is substantially consistent with the due diligence review process that
we would perform if this placement of securities were being registered pursuant
to the Securities Act of 1933, as amended, and we are knowledgeable of such due
diligence review process. It is recognized that what is "substantially
consistent" may vary from situation to situation and may not be the same as that
done in a registered offering of the same securities for the same issuer;
whether the procedures being, or to be, followed, will be "substantially
consistent" will be determined by Bear Stearns & Co. Inc. on behalf of the
Initial Purchasers. We hereby request that you deliver to us a "comfort" letter
concerning the financial statements of the issuer and certain statistical and
other data included in the Company's Final Memorandum. We will contact you to
identify the procedures we wish you to follow and the form we wish the comfort
letter to take.
Very truly yours,
BEAR, STEARNS & CO. INC.
BT ALEX. BROWN INCORPORATED
MORGAN STANLEY & CO. INCORPORATED
By:
BEAR, STEARNS & CO. INC.
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
28
-28-
EXHIBIT A
[FASKEN CAMPBELL GODFREY LETTERHEAD]
December 1, 1998
Bear, Stearns & Co. Inc.
BT Alex. Brown Incorporated
Morgan Stanley & Co. Incorporated
c/o Bear, Stearns & Co. Inc.
245 Park Avenue
New York, New York 10167
Ladies and Gentlemen:
Subject to the assumptions and qualifications outlined below, we are of
the opinion that:
1. Each Subsidiary Guarantor was incorporated under the OBCA and has not
been dissolved under the OBCA.
2. Each Subsidiary Guarantor has the capacity of a natural person and the
corporate power and authority under the OBCA and its Articles and
By-laws to own its property and conduct its business (as such business
is described in the Final Memorandum dated December 1, 1998 relating to
the Securities and to execute, deliver, give the guarantee contemplated
by and perform its obligations under the Transaction Documents to which
it is party.
3. Each Subsidiary Guarantor has taken all necessary corporate action to
authorize the execution, delivery, the giving of the guarantee
contemplated by, and performance of its obligations under, the
Transaction Documents to which it is party and has duly executed and
delivered those Transaction Documents.
4. The execution and delivery of the Transaction Documents to which it is a
party by each Subsidiary Guarantor and the guarantee by each Subsidiary
Guarantor under its Subsidiary Guarantee:
(i) do not contravene or constitute a default under the OBCA or the
Articles or By-laws of any Subsidiary Guarantor; and
(ii) do not contravene any applicable Ontario Law.
5. No consent, license, approval, acknowledgment, order, registration,
filing, notice, exemption or other action is required to be obtained
from any government department or
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agency or other regulatory body or authority under Ontario Law to permit
each Subsidiary Guarantor to execute and deliver the Transaction
Documents to which it is party or to permit each Subsidiary Guarantor to
guarantee under its Subsidiary Guarantee, other than those which been
obtained and remain effective.
6. Without having made any enquiries other than those disclosed, we do not
have any conscious awareness of any existing litigation or other legal
proceedings against any of the Subsidiary Guarantors, except as
otherwise disclosed.
7. No financing statements have been registered under the Personal Property
Security Act (Ontario) against the current names of either Oxford
Automotive or Holdings which could perfect by registration a security
interest in the shares in Holdings or BMG respectively other than the
registrations disclosed in Certificates of Search with a file currency
date of December [ ], 1998 issued by the Ontario Ministry
of Consumer and Commercial Relations, details of which are disclosed.
FASKEN CAMPBELL GODFREY