THIRD AMENDMENT TO CREDIT AGREEMENT
Exhibit 10.1
THIRD AMENDMENT
TO
THIRD AMENDMENT, dated as of June 20, 2008 (this “Amendment”), to the Senior Secured
Super-Priority Debtor in Possession Term Loan Credit and Guaranty Agreement, dated as of January
30, 2008, as amended by the First Amendment to the Credit Agreement, dated as of March 18, 2008,
and the Second Amendment to the Credit Agreement, dated as of May 29, 2008 (as further amended,
restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), by
and among Dura Operating Corp., a Delaware corporation, a debtor and debtor in possession under
Chapter 11 of the Bankruptcy Code (“Company”), Dura Automotive Systems, Inc., a Delaware
corporation , a debtor and debtor in possession under Chapter 11 of the Bankruptcy Code
(“Holdings”), certain domestic Subsidiaries of Holdings and the Company, each a debtor and
debtor in possession under Chapter 11 of the Bankruptcy Code, as Guarantors, the Lenders party
thereto, Ableco Finance LLC, as administrative agent, collateral agent, sole book runner, lead
arranger, syndication agent, and documentation agent and Bank of America, N.A., as Issuing Bank.
All capitalized terms used herein and not otherwise defined herein are used herein as defined in
the Credit Agreement.
W I T N E S S E T H
WHEREAS, the Credit Parties have notified the Lenders and the Agents that the effective date
of the New Plan will not occur, and the transactions contemplated as part of the New Plan will not
have closed, in each case, on or before June 20, 2008, and such failure would constitute an Event
of Default under the Credit Agreement; and
WHEREAS, the Credit Parties, the Lenders and the Agents desire to amend the Credit Agreement
to, inter alia, modify certain terms and conditions of the Credit Agreement as specifically set
forth in this Amendment, including, without limitation, extending the deadline to have the New Plan
become effective.
NOW THEREFORE, the Credit Parties, the Lenders and the Agents hereby agree as follows:
1. Section 5.15(f). Section 5.15(f) of the Credit Agreement is hereby amended by
replacing the reference therein to “June 20, 2008,” with “June 25, 2008”.
2. Section 6.1(1). Section 6.1(1) of the Credit Agreement is hereby amended and
restated in its entirety to read as follows:
“(l) Indebtedness of any Foreign Subsidiary of Holdings that is not a Credit Party in
connection with account factoring arrangements not to exceed at any
time €19,000,000
outstanding; provided, that such amount shall be permitted to be increased to
€74,000,000 so long as a portion of the proceeds of such account factoring arrangements are used
to repay the Obligations in full on or before June 25, 2008;”
3. Conditions to Effectiveness. This Amendment shall become effective only upon
satisfaction in full of the following conditions precedent (the first date upon which all such
conditions have been satisfied being herein called the “Amendment Effective Date”):
(a) The Administrative Agent shall have received counterparts of this Amendment that bear the
signatures of each Credit Party, the Administrative Agent and the Requisite Lenders.
(b) The representations and warranties contained herein, in Section 4 of the Credit Agreement
and in each other Credit Document are true and correct in all material respects on and as of the
Amendment Effective Date as though made on and as of such date, except to the extent that any such
representation or warranty expressly relates solely to an earlier date (in which case such
representation or warranty shall be true and correct in all material respects on and as of such
earlier date).
(c) No Default or Event of Default shall have occurred and be continuing on the Amendment
Effective Date or would result from this Amendment becoming effective in accordance with its terms.
(d) All legal matters incident to this Amendment shall be reasonably satisfactory to the
Administrative Agent and its counsel.
4. Representations and Warranties. Each of the Credit Parties represents and warrants
to the Agents and the Lenders as follows:
(a) Organization; Requisite Power and Authority; Qualification. Each Credit Party (a)
is duly organized, validly existing and (to the extent such concept is relevant) in good standing
under the laws of its jurisdiction of organization, (b) subject to the entry of the Orders (as
applicable), has all requisite power and authority to enter into this Amendment, and (c) is
qualified to do business and in good standing in every jurisdiction where its assets are located
and wherever necessary to carry out its business and operations, except in jurisdictions where the
failure to be so qualified or (to the extent such concept is relevant) in good standing could not
be reasonably expected to have, a Material Adverse Effect.
(b) Authorization, Etc. Subject to the entry of the Orders, the execution, delivery
and performance by each Credit Party of this Amendment (i) have been duly authorized by all
necessary action on the part of each Credit Party that is a party thereto, and (ii) do not and will
not (A) violate any provision of any material law or any material governmental rule or regulation
applicable to Holdings or any of its Subsidiaries, any of the Organizational Documents of Holdings
or any of its Subsidiaries, or any order, judgment or decree of any court or other agency of
government binding on Holdings or any of its Subsidiaries; (B) conflict with, result in a breach of
or constitute (with due notice or lapse of time or both) a default under any Material Contract of
Holdings or any of its Subsidiaries; (C) result in or require the creation or imposition of any
Lien upon any of the properties or assets of Holdings or any of its Subsidiaries (other than any
Liens created under any of the Credit Documents in favor of Collateral Agent, on behalf of Secured
Parties, and the Liens securing the Revolving Credit Obligations); or (D) require any material
approval of stockholders, members or partners or any material approval
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or material consent of any Person under any Material Contract of Holdings or any of its
Subsidiaries, except for such material approvals or material consents which will be obtained on or
before the Closing Date and disclosed in writing to Lenders and such material approvals or material
consents required to be obtained in the ordinary course of business.
(c) Enforceability of Credit Documents. Subject to the entry of the Orders, this
Amendment is a legally valid and binding obligation of the Credit Parties which are party hereto or
thereto, enforceable against such Credit Parties in accordance with its terms, except as may be
limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or
limiting creditors’ rights generally or by equitable principles relating to enforceability.
(d) Representations and Warranties; No Default. The representations and warranties
contained herein, in Section 4 of the Credit Agreement and in each other Credit Document are true
and correct in all material respects on and as of the Amendment Effective Date as though made on
and as of such date, except to the extent that any such representation or warranty expressly
relates solely to an earlier date (in which case such representation or warranty shall be true and
correct in all material respects on and as of such earlier date); and no Default or Event of
Default shall have occurred and be continuing on the Amendment Effective Date or would result from
this Amendment becoming effective in accordance with its terms.
(e) Governmental Consents. Subject to the entry of the Orders, when applicable, the
execution, delivery and performance by the Credit Parties of this Amendment do not and will not
require any registration with, consent or approval of, or notice to, or other action to, with or
by, any Governmental Authority except (i) for filings and recordings with respect to the Collateral
to be made, or otherwise delivered to Collateral Agent for filing and/or recordation, as of the
Closing Date (including, without limitation, filings necessary to release existing Liens and/or
perfect the Liens granted to Collateral Agent), and (ii) entry of the Orders.
5. Reservation of Rights. No action or acquiescence by the Agents and the Lenders,
including, without limitation, this Amendment of, or the acceptance of any payments under, the
Credit Agreement, shall constitute a waiver of any Default or Event of Default which may exist as
of the Amendment Effective Date. Accordingly, the Agents and the Lenders reserve all of their
rights under the Credit Agreement, the Credit Documents, at law and otherwise regarding any such
Default or Event of Default.
6. Continued Effectiveness of Credit Documents. Each of the Credit Parties hereby (i)
confirms and agrees that each Credit Document to which it is a party is, and shall continue to be,
in full force and effect and is hereby ratified and confirmed in all respects except that on and
after the Amendment Effective Date all references in any such Credit Document to “the Credit
Agreement”, “thereto”, “thereof”, “thereunder” or words of like import referring to the Credit
Agreement shall mean the Credit Agreement as amended by this Amendment, and (ii) confirms and
agrees that to the extent that any such Credit Document purports to assign or pledge to the
Collateral Agent, or to grant to the Collateral Agent a security interest in or lien on, any
collateral as security for the Obligations of the Credit Parties from time to time existing in
respect of the Credit Agreement and the Credit Documents, such pledge, assignment and/or grant of
the security interest or lien is hereby ratified and confirmed in all respects.
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7. Release. Each Credit Party hereby acknowledges and agrees that: (a) neither it
nor any of its Affiliates has any claim or cause of action against any Agent or any Lender (or any
of their respective Affiliates, officers, directors, employees, attorneys, consultants or agents)
and (b) each Agent and each Lender has heretofore properly performed and satisfied in a timely
manner all of its obligations to the Credit Parties and their Affiliates under the Credit Agreement
and the other Credit Documents. Notwithstanding the foregoing, the Agents and the Lenders wish
(and the Credit Parties agree) to eliminate any possibility that any past conditions, acts,
omissions, events or circumstances would impair or otherwise adversely affect any of the Agents’
and the Lenders’ rights, interests, security and/or remedies under the Credit Agreement and the
other Credit Documents. Accordingly, for and in consideration of the agreements contained in this
Amendment and other good and valuable consideration, each Credit Party (for itself and its
Affiliates and the successors, assigns, heirs and representatives of each of the foregoing)
(collectively, the “Releasors”) does hereby fully, finally, unconditionally and irrevocably
release and forever discharge each Agent, each Lender and each of their respective Affiliates,
officers, directors, employees, attorneys, consultants and agents (collectively, the “Released
Parties”) from any and all debts, claims, obligations, damages, costs, attorneys’ fees, suits,
demands, liabilities, actions, proceedings and causes of action, in each case, whether known or
unknown, contingent or fixed, direct or indirect, and of whatever nature or description, and
whether in law or in equity, under contract, tort, statute or otherwise, which any Releasor has
heretofore had or now or hereafter can, shall or may have against any Released Party by reason of
any act, omission or thing whatsoever done or omitted to be done on or prior to the Amendment
Effective Date arising out of, connected with or related in any way to this Amendment, the Credit
Agreement or any other Credit Document, or any act, event or transaction related or attendant
thereto, or the agreements of any Agent or any Lender contained therein, or the possession, use,
operation or control of any of the assets of any Credit Party, or the making of any Loans or other
advances, or the management of such Loans or advances or the Collateral on or prior to the
Amendment Effective Date.
8. Miscellaneous.
(a) This Amendment may be executed in any number of counterparts and by different parties
hereto in separate counterparts, each of which shall be deemed to be an original, but all of which
taken together shall constitute one and the same agreement. Delivery of a counterpart hereby by
facsimile or electronic transmission shall be equally effective as delivery of a manually executed
counterpart hereof.
(b) Section and paragraph headings herein are included for convenience of reference only and
shall not constitute a part of this Amendment for any other purpose.
(c) This Amendment shall be governed by, and construed in accordance with, the laws of the
State of New York.
(d) The Credit Parties agree to pay, promptly after receipt of an invoice that sets forth such
costs and expenses in reasonable detail, all reasonable out-of-pocket costs and expenses of the
Agents in connection with the preparation, execution and delivery of
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this Amendment, including, without limitation, the reasonable fees, out-of-pocket
disbursements and other client charges of Xxxxxxx Xxxx & Xxxxx LLP.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed by their
respective officers thereunto duly authorized, as of the date first above written.
| BORROWER: | ||||||
| DURA OPERATING CORP., as a debtor and debtor-in-possession | ||||||
| By: | ||||||
| Title: | ||||||
| GUARANTORS: | ||||||
| DURA AUTOMOTIVE SYSTEMS, INC. DURA SPICEBRIGHT, INC. ADWEST ELECTRONICS, INC. XXXXXX AUTOMOTIVE, INC. XXXXXX MOBILE PRODUCTS, INC. CREATION GROUP HOLDINGS, INC. CREATION GROUP, INC. CREATION GROUP TRANSPORTATION, INC. CREATION WINDOWS, INC. DURA AUTOMOTIVE SYSTEMS CABLE OPERATIONS, INC. DURA AUTOMOTIVE SYSTEMS OF INDIANA, INC. DURA GLOBAL TECHNOLOGIES, INC. XXXXXXXX, INC. XXXX I MOLDED PLASTICS OF TENNESSEE, INC. SPEC-TEMP., INC. UNIVERSAL TOOL & STAMPING COMPANY, INC., as debtors and debtors-in-possession |
||||||
| By: | ||||||
| Title: | ||||||
| DURA SHIFTER L.L.C., as debtor and debtor-in-possession | ||||||
| By: DURA OPERATING CORP., | ||||||
| Its: SOLE MEMBER | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| DURA AIRCRAFT OPERATING
COMPANY, LLC, as debtor and debtor-in-possession |
||||||
| By: DURA OPERATING CORP., | ||||||
| Its: SOLE MEMBER | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| DURA BRAKE SYSTEMS, L.L.C.,
as debtor and debtor-in-possession |
||||||
| By: DURA OPERATING CORP., | ||||||
| Its: SOLE MEMBER | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| DURA CABLES NORTH LLC, as debtor and debtor-in-possession | ||||||
| By: XXXXXX AUTOMOTIVE, INC., | ||||||
| Its: SOLE MEMBER | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| DURA CABLES SOUTH LLC, as debtor and debtor-in-possession | ||||||
| By: XXXXXX AUTOMOTIVE, INC., | ||||||
| Its: SOLE MEMBER | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| DURA FREMONT L.L.C. DURA GLADWIN L.L.C. DURA MANCELONA L.L.C. DURA SERVICES L.L.C., as debtors and debtors-in-possession |
||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| CREATION WINDOWS, LLC, as debtor and debtor-in-possession | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| XXXXXXXX, LLC, as debtor and debtor-in-possession | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| DURA G.P., as debtor and debtor-in-possession | ||||||
| By: DURA OPERATING CORP., | ||||||
| Its: MANAGING GENERAL PARTNER | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| TRIDENT AUTOMOTIVE, L.P., as debtor and debtor-in-possession | ||||||
| By: TRIDENT AUTOMOTIVE LIMITED, | ||||||
| Its: GENERAL PARTNER | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| TRIDENT AUTOMOTIVE, L.L.C., as debtor and debtor-in-possession | ||||||
| By: TRIDENT AUTOMOTIVE CANADA, CO., | ||||||
| Its: MANAGING MEMBER | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| PATENT LICENSING CLEARINGHOUSE
L.L.C., as debtor and debtor-in-possession |
||||||
| By: XXXX I MOLDED PLASTICS OF
TENNESSEE, INC., Its: SOLE MEMBER |
||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| ADMINISTRATIVE AGENT AND LENDER: | ||||||
| ABLECO FINANCE LLC | ||||||
| By: | ||||||
| Title: | ||||||
| LENDER: | ||||||
| SILVER LAKE CREDIT FUND L.P. | ||||||
| By: | ||||||
| Title: | ||||||
| LENDER: | ||||||
| CRYSTAL CAPITAL ONSHORE WAREHOUSE LLC | ||||||
| As duly authorized: Crystal Capital Fund Management, L.P., as designated manager |
||||||
| By: Crystal Capital Fund Management GP, LLC | ||||||
| Its: General Partner | ||||||
| By: | ||||||
| Title: | ||||||
| LENDER: | ||||||
| CRYSTAL CAPITAL OFFSHORE WAREHOUSE LTD. | ||||||
| As duly authorized: Crystal Capital Fund Management, L.P., as designated manager |
||||||
| By: Crystal Capital Fund Management GP, LLC | ||||||
| Its: General Partner | ||||||
| By: | ||||||
| Title: | ||||||
| LENDER: | ||||||
| MONARCH MASTER FUNDING LTD | ||||||
| By: Monarch Alternative Capital LP | ||||||
| Its: Advisor | ||||||
| By: | ||||||
| Title: | ||||||
