EXHIBIT 4.1
FIRST AMENDMENT TO INDENTURE
First Amendment to Indenture (this "FIRST AMENDMENT"), dated
as of July 29, 1999, among Dura Operating Corp., a Delaware corporation (the
"COMPANY"), the Guarantors (as defined in the indenture referred to herein) and
U.S. Bank Trust National Association, as trustee under the indenture referred to
herein (the "TRUSTEE").
W I T N E S S E T H
WHEREAS, the Company has heretofore executed and delivered to
the Trustee an indenture (the "INDENTURE"), dated as of April 22, 1999,
providing for the issuance of an aggregate principal amount of up to $350
million of 9% Senior Subordinated Notes due 2009 (the "NOTES");
WHEREAS, the Company, the Guarantors and the Trustee now wish
to amend Section 3.07(a) of the Indenture to change the redemption price from
101% to 109% and Section 5(b) of the Notes to change the redemption price from
101% to 109% and Section 5.01 of the Indenture to change the exclusion from the
disposition of assets covenant from Restricted Subsidiaries to Guarantors; and
WHEREAS, the amendments described in the preceding Whereas
clause are permitted by Section 9.01(d) of the Indenture without the consent of
the Holders of the Notes.
NOW THEREFORE, in consideration of the foregoing and for other
good and valuable consideration, the receipt of which is hereby acknowledged,
the Company, the Guarantors and the Trustee mutually covenant and agree for the
equal and ratable benefit of the Holders of the Notes as follows:
1. CAPITALIZED TERMS. Capitalized terms used herein without
definition shall have the meanings assigned to them in the Indenture.
2. Section 3.07(a) of the Indenture is hereby amended to read
in its entirety as follows:
(a) At any time prior to May 1, 2002, the Company may redeem
up to 35% of the aggregate principal amount of Notes issued under this Indenture
(calculated after giving effect to any issuance of Additional Notes) at a
redemption price of 109% of the principal amount thereof, plus accrued and
unpaid interest and Liquidated Damages thereon, if any, to the redemption date,
with the net cash proceeds of one or more Equity Offerings; PROVIDED that:
(i) at least 65% of the aggregate principal amount of Notes
issued under this Indenture remains outstanding immediately after the
occurrence of such redemption (excluding Notes held by DASI, the
Company and their respective Subsidiaries); and
(ii) the redemption must occur within 90 days of the date of
the closing of any such Equity Offering.
3. Section 5(b) of each of the Notes is hereby amended to read
in its entirety as follows:
(b) Notwithstanding the provisions of subparagraph (a) of this
Paragraph 5, before May 1, 2002, the Company may on any one or more occasions
redeem up to 35% of the aggregate principal amount of Notes issued under the
Indenture (calculated after giving effect to any issuance of Additional Notes)
at a redemption price of 109% of the principal amount thereof, plus accrued and
unpaid interest and Liquidated Damages thereon, if any, to the redemption date,
with the net cash proceeds of any Equity Offerings; PROVIDED that at least 65%
of the aggregate principal amount of Notes issued under the Indenture remains
outstanding immediately after the occurrence of such redemption (excluding Notes
held by Dura Automotive Systems, Inc., the Company and their respective
Subsidiaries); and PROVIDED FURTHER that such redemption shall occur within 90
days of the date of the closing of any such Equity Offering.
4. Section 5.01 of the Indenture is amended to read in its
entirety as follows:
Section 5.01. Merger, Consolidation, or Sale of Assets.
The Company shall not, directly or indirectly: (1) consolidate
or merge with or into another Person (whether or not the Company is the
surviving corporation); or (2) sell, assign, transfer, convey or otherwise
dispose of all or substantially all of the properties or assets of the Company
and its Restricted Subsidiaries taken as a whole, in one or more related
transactions, to another Person; unless:
(i) either: (a) the Company is the surviving
corporation; or (b) the Person formed by or surviving any such
consolidation or merger (if other than the Company) or to which such
sale, assignment, transfer, conveyance or other disposition shall have
been made is a corporation, partnership, limited liability company or
trust organized or existing under the laws of the United States, any
state thereof or the District of Columbia;
(ii) the Person formed by or surviving any such
consolidation or merger (if other than the Company) or the Person to
which such sale, assignment, transfer, conveyance or other disposition
shall have been made assumes all the obligations of the Company under
the Notes, this Indenture and the Registration Rights Agreement
pursuant to agreements reasonably satisfactory to the Trustee;
(iii) immediately after such transaction no Default
or Event of Default exists; and
(iv) the Company or the Person formed by or surviving
any such consolidation or merger (if other than the Company) or to
which such sale, assignment, transfer, conveyance or other disposition
shall have been made shall, on the date of such transaction after
giving pro forma effect thereto and any related financing transactions
as if the same had occurred at the beginning of the applicable
four-quarter period, be permitted to incur at least $1.00 of additional
Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth
in the first paragraph of Section 4.09 hereof.
In addition, the Company shall not, directly or indirectly,
lease all or substantially all of its properties or assets, in one or more
related transactions, to any other Person. The provisions of this Section 5.01
shall not apply to a sale, assignment, transfer, conveyance or other disposition
of assets between or among the Company and any Guarantors.
5. NEW YORK LAW TO GOVERN. THE INTERNAL LAW OF THE STATE OF
NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS AMENDED INDENTURE BUT WITHOUT
GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT
THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
6. COUNTERPARTS. The parties may sign any number of copies of
this Amendment to Indenture. Each signed copy shall be an original, but all of
them together represent the same agreement.
7. EFFECT OF HEADINGS. The Section headings herein are for
convenience only and shall not affect the construction hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this First
Amendment to be duly executed and attested, all as of the date first above
written.
Dated: July 29, 1999
DURA OPERATING CORP.
By: /s/ Xxxxx X. Xxxxx
----------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
DURA AUTOMOTIVE SYSTEMS, INC.
By: /s/ Xxxxx X. Xxxxx
----------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
DURA AUTOMOTIVE SYSTEMS, INC.
COLUMN SHIFTER OPERATIONS
UNIVERSAL TOOL & STAMPING
COMPANY INC.
DURA AUTOMOTIVE SYSTEMS CABLE
OPERATIONS, INC.
ADWEST ELECTRONICS, INC.
ADWEST WESTERN AUTOMOTIVE, INC.
X.E. CO.
DURA OF TENNESSEE, L.P.
DURA AUTOMOTIVE SYSTEMS OF
INDIANA, INC.
XXXXXXXX INDUSTRIES, INC.
XXXXXX INDUSTRIES, INC.
HYDRO FLAME CORPORATION
XXXXXX AUTOMOTIVE INC.
XXXX I MOLDED PLASTICS, INC.
XXXX I MOLDED PLASTICS OF
TENNESSEE, INC.
By: /s/ Xxxxx X. Xxxxx
----------------------------
Name: Xxxxx X. Xxxxx
Title:
U.S. BANK TRUST NATIONAL
ASSOCIATION
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By:
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Name:
Title:
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