AMENDMENT NO. 5 TO REVOLVING DIP CREDIT AGREEMENT
Exhibit 10.2
EXECUTION VERSION
AMENDMENT NO. 5 TO REVOLVING DIP CREDIT AGREEMENT
This AMENDMENT NO. 5, dated as of January 30, 2008 (this “Amendment”), is entered into by and
among DURA OPERATING CORP., a Delaware corporation, a debtor and debtor in possession under Chapter
11 of the Bankruptcy Code (the “Company”), DURA AUTOMOTIVE SYSTEMS, INC., a Delaware corporation, a
debtor and debtor in possession under Chapter 11 of the Bankruptcy Code (“Holdings”), certain
SUBSIDIARIES OF HOLDINGS AND COMPANY, each a debtor and debtor in possession under Chapter 11 of
the Bankruptcy Code, as Guarantors, the lenders from time to time party to the Revolving DIP Credit
Agreement (as defined below) (the “Lenders”), GENERAL ELECTRIC CAPITAL CORPORATION, as
Administrative Agent (together with its permitted successors in such capacity, the “Administrative
Agent”) and as Collateral Agent, and BARCLAYS CAPITAL, the investment banking division of Barclays
Bank PLC, as Joint Lead Arranger and Documentation Agent, and BANK OF AMERICA, N.A., as Issuing
Bank.
RECITALS:
WHEREAS, the Company, Holdings, the Lenders, the Administrative Agent and the other parties
thereto have entered into that certain Senior Secured Super-Priority Debtor in Possession Revolving
Credit and Guaranty Agreement, dated as of November 30, 2006 (as amended hereby and as further
amended, modified or restated from time to time, the “Revolving DIP Credit Agreement”).
Capitalized terms used but not defined in this Amendment shall have the meanings that are set forth
in the Revolving DIP Credit Agreement; and
WHEREAS, the Company desires to amend the Revolving DIP Credit Agreement to, among other
things, extend the Maturity Date; and
WHEREAS, the Company, Holdings and Ableco Finance LLC (“Ableco”) have entered into the
commitment letter, including the term sheet attached thereto as Exhibit A, dated January 21, 2008
and attached hereto as Exhibit I (the “Ableco Commitment Letter”), and intend to enter into a DIP
term credit facility in the aggregate amount of $170,000,000 (consisting of a $150,000,000 term
loan and a $20,000,000 synthetic LC facility) (the “Replacement Term Loan DIP Facility”), the
proceeds of which shall be used, in part, to repay in full and replace the Term Loan Obligations;
and
WHEREAS, the Administrative Agent and the Lenders have agreed, subject to the limitations and
conditions set forth herein, to amend or otherwise modify the Revolving DIP Credit Agreement, and
to effect certain consents and waivers as set forth herein.
NOW, THEREFORE, in consideration of the premises and the agreements, provisions and covenants
herein contained, the parties hereto agree as follows:
SECTION 1. AMENDMENTS
1.1. Amendments to the Revolving DIP Credit Agreement. As of the first date on which
all of the conditions precedent set forth in Section 3 hereof shall have been satisfied (the
“Effective Date”):
(a) The aggregate amount of the Revolving Commitments of the Lenders is permanently reduced to
$90,000,000 and the amount of the Revolving Commitment of each Lender is
reduced on a pro rata basis so that the Pro Rata Share of each Lender of the aggregate Revolving Commitments remains
unchanged.
(b) Section 1.1 (Definitions) of the Revolving DIP Credit Agreement is hereby amended by
inserting the following definitions in such Section 1.1 in the appropriate place to preserve the
alphabetical order of the definitions in such Section 1.1:
““Fifth Amendment Effective Date” means the “Effective Date” as
defined in Amendment No. 5 to this Agreement.
“Property Portfolio” means the real property located at (i) 0000
Xxxxxxx Xxxxxx Xxxxxxxxx Xxxx, Xxxxxxxxxxxx, Xxxxxxx, (ii) 000
Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxx, Xxxxxx, (iii) 000 Xxxx Xxxxxx
Xxxxxx, Xxxxxxxxxx, Xxxxxxx, (iv) 000 Xxxxx Xxxxxxx Xxxxxx, Xxxxxx,
Xxxxxxxx, (v) 000 Xxxxx Xxxx, Xxxxxxxxx, Xxxxxxxxx, (vi) 0000 Xxxx
X.X. 00, XxXxxxxx, Xxxxxxx, (vii) 0 Xxxxxxxxxx Xxxx, Xxxxxxxx,
Xxxxxxxx, (viii) 000 Xxxxxxxxxx Xxxx, Xxxxxxxxxxx, Xxxxxxx, Xxxxxx
and (ix) 000 Xxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx.”;
(c) Section 1.1 (Definitions) of the Revolving DIP Credit Agreement is hereby amended by
inserting in clause (c) of the definition of “Borrowing Base” immediately after the word
“Carve-Out”, the words “or, if greater, the maximum amount of the carve-out under the Term Loan DIP
Credit Agreement and the interim order or final order (as applicable) with respect to the Term Loan
DIP Credit Agreement”;
(d) Section 1.1 (Definitions) of the Revolving DIP Credit Agreement is hereby amended by
inserting in clause (d) of the definition of “Change of Control” immediately after the words “Term
Loan DIP” and immediately before the word “Agreement”, the word “Credit”;
(e) Section 1.1 (Definitions) of the Revolving DIP Credit Agreement is hereby amended by
inserting in subclause (i) of clause (a) of the definition of “Liquidity Event Period” immediately
after the words “less than $35,000,000”, the words “for a period of two (2) consecutive Business
Days”;
(f) Section 1.1 (Definitions) of the Revolving DIP Credit Agreement is hereby amended by
replacing “January 31, 2008” in clause (i) of the definition of “Maturity Date” with “June 30,
2008”;
(g) Section 1.1 (Definitions) of the Revolving DIP Credit Agreement is hereby amended by
deleting the definition of “Maximum Credit” in its entirety and replacing it in its entirety with
the following:
““Maximum Credit” means, at any time, the least of (i) the Revolving
Commitments in effect at such time, and (ii) the Borrowing Base at
such time.”;
(h) Section 1.1 (Definitions) of the Revolving DIP Credit Agreement is hereby amended by
deleting the definition of “Term Loan DIP Credit Agreement” in its entirety and replacing it in its
entirety with the following:
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““Term Loan DIP Credit Agreement” means the Senior Secured
Super-Priority Debtor In Possession Term Loan and Guaranty
Agreement, dated as of January 30, 2008, among Company, the
Guarantors, Ableco Finance LLC, as Administrative Agent, Collateral
Agent, Syndication Agent and Documentation Agent and the lenders
party thereto.”;
(i) Section 2.8 (Interest on Loans) of the Revolving DIP Credit Agreement is hereby amended
by: (i) deleting from clause (i)(A) of Section 2.8(a), the percentage “0.75%” and replacing it with
the percentage “1.25%”; (ii) deleting from clause (i)(B) of Section 2.8(a), the percentage “1.75%”
and replacing it with the percentage “2.25%”; and (iii) deleting from clause (ii) of Section
2.8(a), the percentage “0.75%” and replacing it with the percentage “1.25%”;
(j) Section 2.14(a) (Asset Sales) of the Revolving DIP Credit Agreement is hereby amended by:
(i) deleting the words “one Business Day” in the first lien thereof and replacing them with the
words “two Business Days” and (ii) adding the following words at the end of such Section 2.14(a):
“; provided, further, that, (x) Company may retain
50% of the Net Asset Sale Proceeds from Asset Sales of the Property
Portfolio, it being understood, however, that such Net Asset Sale
Proceeds shall be applied to pay down any then outstanding principal
amount of Swing Line Loans and Revolving Loans (without a permanent
reduction in the Swing Line Commitment or Revolving Commitment) and
may be reborrowed subject to satisfaction of the conditions for
borrowing set forth herein and (y) Company may apply up to
$5,750,000 of Net Asset Sale Proceeds of Asset Sales of the assets
of a Foreign Subsidiary, first, to the severance costs that have
been incurred by the Company and its Subsidiaries prior to the date
of receipt of such Net Asset Sale Proceeds until such amounts are
paid in full, and, second, after all such severance costs are paid
in full, to amounts outstanding under the Indebtedness permitted
pursuant to Section 6.1(l)”;
(k) Section 2.18 (Making or Maintaining LIBOR Loans) of the Revolving DIP Credit Agreement is
hereby amended by deleting the following sentence therefrom:
“Notwithstanding anything in any Credit Document to the contrary,
including but not limited to this Section 2.18, Section 2.9 hereof,
or any other provision of this Agreement, as of the Fourth Amendment
Effective Date (i) all Loans shall automatically be deemed to be
Base Rate Loans, (ii) no Loans may be made as, or converted to,
LIBOR Loans and (iii) any Funding Notice or Conversion/Continuation
Notice given by Company with respect to such Loans shall be deemed
to be rescinded by Company.”;
(l) Section 4 (Representations and Warranties) of the Revolving DIP Credit Agreement is hereby
amended by inserting after Section 4.24, new Sections 4.25, 4.26, 4.27 and 4.28 as follows:
“4.25 Appointment of Trustee or Examiner; Liquidation. No order has
been entered in any Chapter 11 Case (i) for the appointment of a
Chapter 11 trustee, (ii) for the appointment of an examiner with
enlarged
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powers (beyond those set forth in Sections 1106(a)(3) and (4) of the
Bankruptcy Code) under Section 1106(b) of the Bankruptcy Code or
(iii) to convert any Chapter 11 Case to a Chapter 7 case or to
dismiss any Chapter 11 Case.
4.26 Insurance. Each Credit Party keeps its property adequately
insured and maintains (i) public liability insurance, third party
property damage insurance, business interruption insurance and
casualty insurance with respect to liabilities, losses or damage in
respect of the assets, properties and businesses of Holdings and its
Subsidiaries as may customarily be carried or maintained under
similar circumstances by Persons of established reputation engaged
in similar businesses, in each case in such amounts (giving effect
to self insurance), with such deductibles, covering such risks and
otherwise on such terms and conditions as shall be customary for
such Persons and (ii) such other insurance as may be required by
law. Schedule 4.26 sets forth a list of all insurance maintained by
each Credit Party on the Closing Date.
4.27 Schedules. All of the information which is required to be
scheduled to this Agreement is set forth on the Schedules attached
hereto, is correct and accurate and does not omit to state any
information material thereto.
4.28 Representations and Warranties in Documents; No Default. All
representations and warranties set forth in this Agreement and the
other Credit Documents are true and correct in all respects at the
time as of which such representations were made and on the Closing
Date. No Event of Default has occurred and is continuing and no
condition exists which constitutes a Default or an Event of
Default.”;
(m) Section 5.1(c) (Annual Financial Statements) of the Revolving DIP Credit Agreement is
hereby amended by inserting after the words “Within 120 days after the end of each Fiscal Year”,
the following:
“or, in the case of the Fiscal Year ending December 31, 2007, within
150 days after the end of such Fiscal Year”;
(n) Section 5.1(j) (Notice Regarding Material Contracts) of the Revolving DIP Credit Agreement
is hereby amended by deleting such Section 6.8(b) in its entirety and replacing it in its entirety
with the following:
“ (j) Notice Regarding Material Contracts. Promptly, and in
any event within ten Business Days (i) after any Material Contract
of Holdings or any of its Subsidiaries is terminated or amended in a
manner that is materially adverse to Holdings or such Subsidiary, as
the case may be, or (ii) any new Material Contract is entered into,
a written statement describing such event, with copies of such
material amendments or new contracts, delivered to Administrative
Agent, and an explanation of any actions being taken with respect
thereto.”;
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(o) Section 5.1(o) (Financial Statements and Other Reports) of the Revolving DIP Credit
Agreement is hereby amended by deleting clause (i) in its entirety and replacing it in its entirety
with the following:
“(i) From the Fifth Amendment Effective Date until April 10, 2008,
Company shall deliver, not later than 15 days after the end of each
fiscal month, a Borrowing Base Certificate as of the end of such
fiscal month executed by an Authorized Officer of Company. During a
Liquidity Event Period occurring prior to April 10, 2008, and for
the week ending April 11, 2008 and each week thereafter, Company
shall deliver, not later than four (4) Business Days after the last
day of each week, an additional Borrowing Base Certificate as of the
end of such weekly period (containing available updated figures for
Eligible Receivables on a weekly basis and containing available
updated figures for Eligible Inventory as of the most recent month
end) executed by an Authorized Officer of Company. Together with
each delivery of a Borrowing Base Certificate, Company shall deliver
an accounts receivable aging, an accounts receivable roll-forward,
an inventory summary (by type and location), an accounts payable
aging and such other information as Administrative Agent may
request, all in form and substance satisfactory to Administrative
Agent.”;
(p) Section 5.1 (Financial Statements and Other Reports) of the Revolving DIP Credit Agreement
is hereby amended by inserting after Section 5.1(p) a new Section 5.1(q) as follows:
“(q) Term Loan Documents. Promptly after delivery or
receipt thereof, copies of all reports and notices delivered to or
received from the Term Loan Administrative Agent or the lenders
under the Term Loan Credit Documents (other than reports and notices
(or corresponding reports and notices) already delivered to the
Administrative Agent and the Lenders under this Agreement).”;
(q) Section 5.10(a) of the Revolving DIP Credit Agreement is hereby amended by: (i) deleting
the words “or a Canadian Subsidiary” from the second line thereof; (ii) deleting the words “and
Canadian Subsidiaries” from the tenth line thereof; (iii) deleting the percentage “66%” in the
tenth line thereof and replacing it with the percentage “100%”, and (iv) deleting the words “30th
day” in clause (y) of the proviso at the end thereof and replacing them with the words “15th
Business Day”; and (v) deleting the words “or Canadian” in clause (y) of the proviso at the end
thereof;
(r) Section 5.10(c) of the Revolving DIP Credit Agreement is hereby amended by: (i) deleting
the words “or Canadian Subsidiary” from the second line thereof; (ii) deleting the words “and
Canadian Subsidiaries” from the eleventh line thereof; (iii) deleting the percentage “66%” in the
eleventh line thereof and replacing it with the percentage “100%”, and (iv) deleting the words
“30th day” in clause (y) of the proviso at the end thereof and replacing them with the words “15th
Business Day”;
(s) Section 5.11 (Further Assurances) of the Revolving DIP Credit Agreement is hereby amended
by inserting inside the parenthetical at the end of Section 5.11 immediately following the words
“with respect to Foreign Subsidiaries”, the following:
“; provided, however, that, such limitations with respect to Capital
Stock of Foreign Subsidiaries shall not apply to the extent that the
Term Loan
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Obligations are secured by more than 66% of the Capital Stock of any
Foreign Subsidiaries”;
(t) Section 5 (Affirmative Covenants) of the Revolving DIP Credit Agreement is hereby amended
by inserting after Section 5.15, new Sections 5.16 and 5.17 as follows:
“5.16. New Plan of Reorganization
(a) On or before March 14, 2008, the Debtors shall file (i) a
revised chapter 11 plan of reorganization (the “New Plan”) and (ii)
an amended disclosure statement (the “Amended Disclosure
Statement”), each in form and substance satisfactory to the
Administrative Agent and Requisite Lenders and providing, inter
alia, for payment in full in Cash of all of the Obligations on the
effective date of the New Plan.
(b) On or before April 15, 2008, the Company shall procure a
commitment from a Person or Persons reasonably acceptable to the
Administrative Agent and Requisite Lenders to provide equity exit
financing to the Company and the Guarantors (whether in the form of
a rights offering, new equity or otherwise) upon the effectiveness
of the New Plan, in an amount and on terms and conditions acceptable
to the Administrative Agent and Requisite Lenders.
(c) On or before May 8, 2008, the Company shall procure a commitment
from a Person or Persons reasonably acceptable to the Administrative
Agent and Requisite Lenders to provide debt exit financing to the
Company and the Guarantors upon the effectiveness of the New Plan,
in an amount and on terms and conditions acceptable to the
Administrative Agent and Requisite Lenders.
(d) On or before May 15, 2008, the Bankruptcy Court shall have
approved the Amended Disclosure Statement pursuant to an order, and
on other terms, in form and substance satisfactory to the
Administrative Agent and Requisite Lenders.
(e) On or before June 9, 2008, the Bankruptcy Court shall have
entered an order in form and substance satisfactory to the
Administrative Agent and Requisite Lenders confirming the New Plan.
(f) On or before June 20, 2008, the effective date of the New Plan
shall have occurred and the transactions contemplated as part of the
New Plan shall have closed.
5.17 Post-Fifth Amendment Effective Date Obligations.
(a) Within thirty (30) days of the Fifth Amendment Effective Date
(or such later date as Administrative Agent may agree), Company
shall (i) cause Collateral Agent to have a perfected security
interest in 100% of the voting Capital Stock and 100% of the
non-voting Capital Stock of each first-tier Foreign Subsidiary as
reasonably requested by the Administrative Agent, including,
Autopartes Excel de Mexico S.A. de
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C.V. (Mexico), Dura de Mexico SA de CV, Ltd. JV, Dura/Excel do
Brasil Ltda, Dura UK Limited, and, each other first-tier Foreign
Subsidiary as reasonably requested by the Administrative Agent,
organized under the laws of France, England & Wales, Scotland or
Germany, in each case, pursuant to Foreign Collateral Agreements in
the applicable jurisdiction for each such Foreign Subsidiary, in
form and substance satisfactory to Administrative Agent; and, (ii)
deliver related written opinions of counsel to the Credit Parties in
connection therewith as to such matters as Administrative Agent may
reasonably request. Collateral Agent (or its bailee) shall have
received all pledged stock certificates and all possessory
collateral for each Subsidiary of Company referred to in the
immediately preceding sentence, together with stock powers or other
appropriate instruments of transfer for such certificates executed
in blank.
(b) Within thirty (30) days of the Fifth Amendment Effective Date
(or such later date as Administrative Agent may agree), the Credit
Parties shall take all reasonable action necessary to perfect, under
applicable non-bankruptcy law, the lien of the Collateral Agent in
any aircraft owned by such Credit Party.”;
(u) Section 6.1(c) of the Revolving DIP Credit Agreement is hereby amended by deleting such
Section 6.1(c) in its entirety and replacing it in its entirety with the following:
“(c) Indebtedness with respect to the Term Loan Obligations in an
aggregate principal amount not exceeding the Term Loan Cap Amount
(as defined in the Intercreditor Agreement);”;
(v) Section 6.1(i) of the Revolving DIP Credit Agreement is hereby amended by deleting the
dollar figure “$5,000,000” and replacing it with the dollar figure “$250,000”;
(w) Section 6.1(j) of the Revolving DIP Credit Agreement is hereby amended by deleting the
dollar figure “$10,000,000” and replacing it with the dollar figure “$6,000,000”;
(x) Section 6.1(m) of the Revolving DIP Credit Agreement is hereby amended by deleting such
Section 6.1(m) in its entirety and replacing it in its entirety with the following:
“(m) Indebtedness, to the extent the applicable obligations are
Indebtedness, constituting a Sale and Lease-Back Transaction
permitted by Section 6.11”;
(y) Section 6.2(a) of the Revolving DIP Credit Agreement is hereby amended by deleting such
Section 6.2(a) in its entirety and replacing it in its entirety with the following:
“(a) (i) Liens in favor of Collateral Agent granted pursuant to any
Credit Document and (ii) subject to the terms of the Intercreditor
Agreement, Liens on the Collateral securing the Term Loan
Obligations;”;
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(z) Section 6.2(i) of the Revolving DIP Credit Agreement is hereby amended by inserting at the
end thereof, the following: “in the ordinary course of business consistent with past practices”;
(aa) Section 6.2(n) of the Revolving DIP Credit Agreement is hereby amended by deleting such
Section 6.2(n) in its entirety and replacing it in its entirety with the following:
“(n) Liens securing Indebtedness permitted by (i) Section 6.1(i) or
(j) secured only by the applicable property financed by such
Indebtedness or (ii) Section 6.1(l) secured only by assets of a
Foreign Subsidiary of Holdings that is not a Credit Party;”;
(bb) Section 6.4 (No Further Negative Pledges) of the Revolving DIP Credit Agreement is hereby
amended by inserting in clause (a) thereof, immediately after the words “Section 6.1(j)”, the words
“and assets of a Foreign Subsidiary of Holdings that is not a Credit Party in connection with
Indebtedness permitted by Section 6.1(l)”;
(cc) Section 6.7 (Investments) of the Revolving DIP Credit Agreement is hereby amended by: (i)
deleting the word “and” at the end of clause (g) thereof, (ii) deleting the period at the end of
clause (h) thereof and replacing it with a semicolon, and (iii) inserting after such semicolon at
the end of clause (h) thereof, a new clause (i) as follows;
“(i) Investments in any Joint Venture in an aggregate amount not to
exceed at any time $1,000,000 outstanding.”;
(dd) Section 6.8(a) (Minimum EBITDA) of the Revolving DIP Credit Agreement is hereby amended
by deleting such Section 6.8(a) in its entirety and replacing it in its entirety with the
following: “[Intentionally Omitted.]”;
(ee) Section 6.8(b) (Budget Compliance) of the Revolving DIP Credit Agreement is hereby
amended by deleting such Section 6.8(b) in its entirety and replacing it in its entirety with the
following:
“(b) Budget Compliance. Company shall, within 4 Business
Days after the last day of each week (a “Test Date”), deliver a
certificate, in form and substance reasonably satisfactory to
Administrative Agent (a “Budget Compliance Certificate”),
demonstrating that Total Utilization of Revolving Commitments does
not exceed, by more than (i) 25% for each Test Date occurring in
February or March 2008, and (ii) 20% for each Test Date occurring in
April 2008 and any month thereafter, the Total Utilization of
Revolving Commitments set forth in the Budget for the last day of
the immediately preceding month, if the Test Date is on or before
the 15th day of such month (other than the month of February 2008),
or for the last day of such month, if the Test Date is on or after
the 16th day of such month and for any Test Date in the month of
February 2008; provided that no amendment of or modification to the
Budget approved by Administrative Agent following a breach arising
under this provision shall be effective to cure or waive such breach
without the consent of the Requisite Lenders; provided, further,
that, Company shall not submit a Funding Notice or Issuance Notice
(and for the avoidance of doubt, the Lenders shall not be required
to fund any Loans and the
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Issuing Bank shall not be required to issue any Letters of Credit)
if the amount of the Loans and/or Letters of Credit requested
pursuant thereto would cause the Total Utilization of Revolving
Commitments to exceed the maximum amount of Total Utilization of
Revolving Commitments permitted under this Section 6.8(b). In the
event that Company proposes to use any Adequate Protection Portion
for any purpose of other than the adequate protection payments
referred to in Section 2.6, Company shall provide an updated Budget
reasonably acceptable to Administrative Agent for the purposes of
determining whether to approve such use (as contemplated in Section
2.6).”
(ff) Section 6.8(c) (Excess Availability) of the Revolving DIP Credit Agreement is hereby
amended by: (i) deleting the word “and” at the end of clause (i) thereof, (ii) deleting the words
“Beginning on January 11, 2008 and thereafter” from clause (ii) thereof and replacing them with the
words “Beginning on January 11, 2008 until the day immediately prior to the Fifth Amendment
Effective Date”, (iii) deleting the period at the end of clause (ii) thereof and replacing it with
a semicolon, and (iv) inserting after such semicolon at the end of clause (ii) thereof, a new
clause (iii) as follows:
“(iii) Beginning on the Fifth Amendment Effective Date and
thereafter, Company shall have Excess Availability of at least
$25,000,000; provided, that, (x) so long as no Default or Event of
Default (including, without limitation, any Event of Default
resulting from a failure to satisfy the requirements of Sections
5.16(a) and 5.16(b)) shall have occurred and be continuing on April
16, 2008, beginning on April 16, 2008 and thereafter, Company shall
have Excess Availability of at least $20,000,000, and (y) so long as
the requirements of Section 5.16(c) shall have been satisfied and no
Default or Event of Default shall have occurred and be continuing at
such time, beginning on the first day after the day on which the
requirements of Section 5.16(c) shall have been satisfied and
thereafter, Company shall have Excess Availability of at least
$15,000,000.”;
(gg) Section 6.11 (Sales and Lease-Backs) of the Revolving DIP Credit Agreement is hereby
amended by deleting such Section 6.11 in its entirety and replacing it in its entirety with the
following:
“6.11 Sales and Lease Backs. Except as set forth on Schedule 6.11,
no Credit Party shall, nor shall it permit any of its Subsidiaries
to, directly or indirectly, become or remain liable as lessee or as
a guarantor or other surety with respect to any lease of any
property (whether real, personal or mixed), whether now owned or
hereafter acquired, which such Credit Party (a) has sold or
transferred or is to sell or to transfer to any other Person (other
than Holdings or any of its Subsidiaries), or (b) intends to use for
substantially the same purpose as any other property which has been
or is to be sold or transferred by such Credit Party to any Person
(other than Holdings or any of its Subsidiaries) in connection with
such lease (a “Sales and Lease Back Transaction”).”;
(hh) Section 6.14 (Amendments of or Waivers with respect to Subordinated Indebtedness) of the
Revolving DIP Credit Agreement is hereby amended by deleting such Section 6.14 in its entirety and
replacing it in its entirety with the following:
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“6.14 Modifications of Indebtedness, Organizational Documents and
Certain Other Agreements; Etc. Except as permitted pursuant to the
Orders, and, with respect to the Term Loan Credit Documents and the
Term Loan Obligations except as permitted in the Intercreditor
Agreement, no Credit Party shall, nor shall it permit any of its
Subsidiaries to, (i) amend, modify or otherwise change (or permit
the amendment, modification or other change in any manner of) any of
the provisions of any of its or its Subsidiaries’ Indebtedness
(other than intercompany Indebtedness in accordance with this
Agreement) or of any instrument or agreement (including, without
limitation, any purchase agreement, indenture, loan agreement or
security agreement) relating to any such Indebtedness if such
amendment, modification or change would shorten the final maturity
or average life to maturity of, or require any payment to be made
earlier than the date originally scheduled on, such Indebtedness,
would increase the interest rate applicable to such Indebtedness,
would change the subordination provision, if any, of such
Indebtedness, or would otherwise be adverse to the Lenders or the
issuer of such Indebtedness in any respect, (ii) except for the
Obligations and the Term Loan Obligations and voluntary prepayments
of intercompany Indebtedness not otherwise prohibited by this
Agreement, make any voluntary or optional payment, prepayment,
redemption, defeasance, sinking fund payment or other acquisition
for value of any of its or its Subsidiaries’ Indebtedness
(including, without limitation, by way of depositing money or
securities with the trustee therefor before the date required for
the purpose of paying any portion of such Indebtedness when due), or
refund, refinance, replace or exchange any other Indebtedness for
any such Indebtedness (except to the extent such Indebtedness is
otherwise expressly permitted by Section 6.1), or make any payment,
prepayment, redemption, defeasance, sinking fund payment or
repurchase of any outstanding Indebtedness as a result of any asset
sale, change of control, issuance and sale of debt or equity
securities or similar event, or give any notice with respect to any
of the foregoing, (iii) except as permitted by Section 6.9, amend,
modify or otherwise change its name, jurisdiction of organization,
organizational identification number or FEIN or (iv) amend, modify
or otherwise change its certificate of incorporation or bylaws (or
other similar organizational documents), including, without
limitation, by the filing or modification of any certificate of
designation, or any agreement or arrangement entered into by it,
with respect to any of its Capital Stock (including any
shareholders’ agreement), or enter into any new agreement with
respect to any of its Capital Stock, except any such amendments,
modifications or changes or any such new agreements or arrangements
pursuant to this clause (iv) that either individually or in the
aggregate, could not reasonably be expected to have a Material
Adverse Effect.”;
(ii) Section 6 (Negative Covenants) of the Revolving DIP Credit Agreement is hereby amended by
inserting after Section 6.18, new Sections 6.19, 6.20, 6.21, 6.22 and 6.23 as follows:
“6.18 Certain Agreements. No Credit Party shall, nor shall it
permit any of its Subsidiaries to, agree to any material amendment
or other material change to or material waiver of any of its rights
under any
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Material Contract that is adverse to the Administrative Agent and
the Lenders.
6.19 Investment Company Act of 1940. No Credit Party shall engage
in any business, enter into any transaction, use any securities or
take any other action or permit any of its Subsidiaries to do any of
the foregoing, that would cause it or any of its Subsidiaries to
become subject to the registration requirements of the Investment
Company Act of 1940, as amended, by virtue of being an “investment
company” or a company “controlled” by an “investment company” not
entitled to an exemption within the meaning of such Act.
6.20 ERISA. Except to the extent resulting in liability not
exceeding $2,500,000 in the aggregate at any time, no Credit Party
shall, nor shall it permit any of its Subsidiaries to, (i) engage,
or permit any ERISA Affiliate to engage, in any transaction
described in Section 4069 of ERISA; (ii) engage, or permit any ERISA
Affiliate to engage, in any prohibited transaction described in
Section 406 of ERISA or 4975 of the Internal Revenue Code for which
a statutory or class exemption is not available or a private
exemption has not previously been obtained from the U.S. Department
of Labor; (iii) adopt or permit any ERISA Affiliate to adopt any new
employee welfare benefit plan within the meaning of Section 3(1) of
ERISA which provides benefits to employees after termination of
employment other than as required by Section 601 of ERISA or
applicable law or as in existence on the Closing Date; (iv) fail to
make any contribution or payment to any Multiemployer Plan which it
or any ERISA Affiliate may be required to make under any agreement
relating to such Multiemployer Plan, or any law pertaining thereto;
or (v) fail, or permit any ERISA Affiliate to fail, to pay any
required installment or any other payment required under Section 412
of the Internal Revenue Code on or before the due date for such
installment or other payment.
6.21 Environmental. No Credit Party shall, nor shall it permit any
of its Subsidiaries to, permit the use, handling, generation,
storage, treatment, Release or disposal of Hazardous Materials at
any property owned or leased by it or any of its Subsidiaries,
except in material compliance with Environmental Laws or as could
not reasonably be expected to result in a Material Adverse Effect.
6.22 Federal Reserve Regulations. No Credit Party shall, nor shall
it permit any of its Subsidiaries to, permit any Loan or the
proceeds of any Loan under this Agreement to be used for any purpose
that would cause such Loan to be a margin loan under the provisions
of Regulation T, U or X of the Board of Governors.”;
(jj) Section 8.1(a) (Events of Default) of the Revolving DIP Credit Agreement is hereby
amended by: (i) inserting the words “when due” at the beginning of clause (iii) thereof immediately
before the words “any interest”, and (ii) deleting from clause (iii) thereof the words “within 5
days after the date due”;
11
(kk) Section 8.1(b) (Events of Default) of the Revolving DIP Credit Agreement is hereby
amended by deleting the dollar figure “$10,000,000” and replacing it with the dollar figure
“$5,000,000”;
(ll) Section 8.1(c) (Events of Default) of the Revolving DIP Credit Agreement is hereby
amended by: (i) inserting the words “Section 5.3,” immediately before the words “Section 5.5”, (ii)
inserting the words “Section 5.6, Section 5.8” immediately before the words “Section 5.13”, and
(iii) inserting the words “, Section 5.16, Section 5.17” immediately before the words “or Section
6”;
(mm) Section 8.1(e) (Events of Default) of the Revolving DIP Credit Agreement is hereby
amended by deleting such Section 8.1(e) in its entirety and replacing it in its entirety with the
following:
“(e) Other Defaults Under Credit Documents. Any Credit
Party shall default in the performance of or compliance with any
term contained herein or any of the other Credit Documents, other
than any such term referred to in any other Section of this Section
8.1, and (x) with respect to any other subsection of Section 5.1 not
listed in clause (c) above or Section 5.9, such default shall not
have been remedied or waived within five (5) days after the earlier
of (i) an officer of such Credit Party becoming aware of such
default or (ii) receipt by Company of notice from Administrative
Agent or any Lender of such default and (y) with respect to all
other instances, such default shall not have been remedied or waived
within twenty (20) days after the earlier of (i) an officer of such
Credit Party becoming aware of such default or (ii) receipt by
Company of notice from Administrative Agent or any Lender of such
default; or”;
(nn) Section 8.1(h) (Events of Default) of the Revolving DIP Credit Agreement is hereby
amended by: (i) deleting the dollar figure “$10,000,000” and replacing it with the dollar figure
“$5,000,000” and (ii) deleting the words “later than five days prior to the date of any proposed
sale thereunder” in the parenthetical at the end thereof and replacing them with the words
“enforcement proceedings shall have been commenced by any creditor upon any such judgment, order,
award or settlement”;
(oo) Section 8.1(l) (Events of Default) of the Revolving DIP Credit Agreement is hereby
amended by: (i) deleting from subclause (y) of clause (i) thereof the word “materially”, (ii)
deleting the word “or” at the end of clauses (xi) and (xii) thereof, and (iii) inserting the
following new clauses (xiii), (xiv) and (xv) immediately after clause (xii):
“(xiii) (x) a final order, in form and substance satisfactory to the
Administrative Agent in its sole discretion, with respect to the
Term Loan DIP Credit Agreement is not entered within 30 days of the
date of entry of an interim order with respect thereto, or in any
event immediately following the expiration of such interim order or
such interim order shall cease to be in full force and effect
without such final order having been entered upon or prior to such
cessation or (y) such final order shall cease to be in full force
and effect or either are reversed, vacated, amended, varied, stayed,
supplemented or otherwise modified without the prior consent of
Administrative Agent;
12
(xiv) except as otherwise permitted pursuant to Section 6.9, the
determination of any Credit Party or any of its Subsidiaries (other
than an Immaterial Subsidiary), whether by vote of such Person’s
board of directors or otherwise, to suspend the operation of such
Person’s business in the ordinary course, liquidate all of such
Person’s assets, or employ an agent or other third party to conduct
any sales of all of such Person’s assets, or the filing of a motion
or other application in the Chapter 11 Cases, seeking authority to
do any of the foregoing; or
(xv) an application for any of the orders described in this clause
(l) above shall be made by a Person other than the Credit Parties
and such application is not promptly contested by the Credit Parties
in good faith and the relief requested is granted in an order that
is not stayed pending appeal; or”;
(pp) Section 8.1(m) (Events of Default) of the Revolving DIP Credit Agreement is hereby
amended by: (i) deleting the dollar figure “$5,000,000” and replacing it with the dollar figure
“$2,500,000” and (ii) inserting the word “or” after the semicolon at the end thereof;
(qq) Section 8.1 (Events of Default) of the Revolving DIP Credit Agreement is hereby amended
by inserting the following new clauses (n), (o), (p), (q), (r) and (s) immediately after the word
“or” at the end of clause (m) thereof:
“(n) the Credit Parties and their Subsidiaries (taken as a whole)
are enjoined, restrained or in any way prevented by the order of any
court or any Governmental Authority from conducting all or any
material part of their businesses for more than fifteen (15) days;
or
(o) any material damage to, or loss, theft or destruction of, any
Collateral, whether or not insured, or any strike, lockout, labor
dispute, embargo, condemnation, act of God or public enemy, or other
casualty which causes, for more than fifteen (15) consecutive days,
the cessation or substantial curtailment of revenue producing
activities at any facility of the Credit Parties, if any such event
or circumstance could reasonably be expected to have a Material
Adverse Effect; or
(p) any cessation of a substantial part of the business of the
Credit Parties and their Subsidiaries (taken as a whole) for a
period which materially and adversely affects the ability of such
Person to continue its business; or
(q) the loss, suspension or revocation of, or failure to renew, any
license or permit now held or hereafter acquired by any Credit Party
or any of its Subsidiaries, if such loss, suspension, revocation or
failure to renew could reasonably be expected to have a Material
Adverse Effect; or
(r) the indictment of any Credit Party or any of its Subsidiaries
under any criminal statute, or commencement of criminal proceedings
against any Credit Party, pursuant to which statute or proceedings
the penalties or remedies sought or available include forfeiture to
any
13
Governmental Authority of any material portion of the property of
such Person;”;
(rr) Section 10.1(a) of the Revolving DIP Credit Agreement is amended by inserting the
following sentence at the end thereof:
“Nothing in this Agreement or in any other Credit Document shall be
construed to limit or affect the obligation of the Credit Parties or
any other Person to serve upon the Agents and the Lenders in the
manner prescribed by the Bankruptcy Code any pleading or notice
required to be given to the Issuing Bank, the Agents and the Lenders
pursuant to the Bankruptcy Code.”;
(ss) Exhibit I of the Revolving DIP Credit Agreement is hereby amended and restated in its
entirety as set forth on Exhibit II attached hereto; and
(tt) Schedule 6.1 of the Revolving DIP Credit Agreement is hereby supplemented as set forth on
Exhibit III attached hereto.
1.2. Amendments to the Pledge and Security Agreement. As of the Effective Date:
(a) Section 2.1 (Grant of Security) of the Pledge and Security Agreement is hereby amended by
inserting immediately after the first sentence of such Section 2.1, the following:
“To the extent not otherwise included in the grant of a security
interest hereunder, each Grantor hereby pledges and grants to
Collateral Agent a security interest in and to and Lien on all of
the property, assets or interests in property or assets of such
Grantor, of any kind or nature whatsoever, real or personal, now
existing or hereafter acquired or created, including, without
limitation, all property of the “estate” (within the meaning of the
Bankruptcy Code) of such Grantor, and all accounts, inventory,
goods, contract rights, instruments, documents, chattel paper,
patents, trademarks, copyrights and licenses therefor, general
intangibles, payment intangibles, letters of credit,
letter-of-credit rights, supporting obligations, machinery and
equipment, real property, fixtures, leases, all of the Capital Stock
of the issued and outstanding Capital Stock entitled to vote (within
the meaning of Treas. Reg. Section 1.956-2(c)) and all of the issued
and outstanding Capital Stock not entitled to vote (within the
meaning of Treas. Reg. Section 1.956-2(c)(2)) of each direct
Subsidiary of such Credit Party (but excluding the Capital Stock of
all Foreign Subsidiaries that are not first-tier Foreign
Subsidiaries), all of the Capital Stock of all other Persons
directly owned by such Credit Party, money, investment property,
deposit accounts, all commercial tort claims and all causes of
action arising under the Bankruptcy Code or otherwise (including,
without limitation, all the proceeds of Avoidance Actions, but
excluding such Avoidance Actions), and all cash and non-cash
proceeds, rents, products and profits of any of collateral described
above.”; and
(b) Section 2.2 (Certain Limited Exclusions) of the Pledge and Security Agreement is hereby
amended by inserting at the end of clause (b) of Section 2.2, immediately following the words “each
Controlled Foreign Corporation”, the following:
14
“; provided, further, that, such limitations with respect to capital
stock of a Controlled Foreign Corporation shall not apply to the
extent that the Term Loan Obligations are secured by more than 66%
of the Capital Stock of any Controlled Foreign Corporation”.
SECTION 2. AMENDMENT FEE
2.1. Amendment Fee. The Borrower shall pay to the Administrative Agent for the
account of each consenting Lender for which the Administrative Agent shall have received an
executed signature page hereto an amendment fee (the “Amendment Fee”) in an amount equal to 1.25%
of the aggregate outstanding Revolving Commitment provided by each such consenting Lender, which
fee shall be fully earned, due and payable on the Effective Date.
SECTION 3. CONDITIONS PRECEDENT TO EFFECTIVENESS
3.1. Effectiveness of Amendment. The effectiveness of this Amendment is subject to
the satisfaction, or waiver, of the following conditions:
(a) the Administrative Agent shall have received this Amendment, duly executed by each of the
Credit Parties, the Administrative Agent and each Lender;
(b) (i) the Company, Holdings, Ableco and the other parties to the Ableco Commitment Letter
shall have entered into and closed the Replacement Term Loan DIP Facility on the terms and
conditions set forth in the Ableco Commitment Letter and otherwise on terms and conditions
satisfactory to the Administrative Agent in its sole discretion (including, without limitation, an
intercreditor agreement, between the Administrative Agent and Ableco in the same form as the
existing Intercreditor Agreement other than changes thereto in the maximum amounts of the Revolving
Credit Facility Cap Amount and the Term Loan Cap Amount (each as defined in the Intercreditor
Agreement) to reflect (x) the amounts of the Revolving Commitments (as reduced in Section 1.1(a) of
this Amendment) and (y) the Replacement Term Loan DIP Facility), (ii) the Company shall have
delivered executed copies of the definitive documentation in connection with the Replacement Term
Loan DIP Facility, and (iii) certain of the proceeds of the Replacement Term Loan DIP Facility
shall have been used to repay in full and replace the Term Loan Obligations and to repay all
outstanding Revolving Loans and Swing Line Loans;
(c) the representations and warranties set forth in Section 4 hereof shall be true and correct
in all material respects as of the Effective Date;
(d) the Borrower shall have paid to the Administrative Agent the Amendment Fee;
(e) the Collateral Agent shall have a valid security interest in, and Lien on, 100% of the
voting (and 100% of the non-voting) Capital Stock of each first-tier Foreign Subsidiary; and
(f) the Bankruptcy Court shall have approved, pursuant to one or more orders in form and
substance satisfactory to the Administrative Agent in its sole discretion, (i) the terms of this
Amendment, (ii) the payment of all fees and expenses required to be paid by the Borrower hereunder
or under the Credit Agreement, including, without limitation, the Amendment Fee, (iii) the
continuing Super Priority Nature of Obligations and Lenders’ Liens as set forth in Section 2.24 of
the Credit Agreement and as more fully set forth and/or provided for in the Orders, and (iv) the
Replacement Term Loan DIP Facility.
15
SECTION 4. REPRESENTATIONS AND WARRANTIES
4.1. Representations and Warranties. The Company and each other Credit Party hereby
represents and warrants that:
(a) Corporate Power and Authority. Subject to entry of the Bankruptcy Court order(s)
described in Section 3.1(f) above, each Credit Party has all requisite corporate power and
authority to enter into this Amendment and to carry out the transactions contemplated hereby in all
material respects, and perform its obligations under the Revolving DIP Credit Agreement and the
other Credit Documents, in each case in all material respects.
(b) Authorization of Agreements. Subject to entry of the Bankruptcy Court order(s)
described in Section 3.1(f) above, the execution and delivery of this Amendment has been duly
authorized by all necessary corporate or equivalent action on the part of each Credit Party that is
a party thereto.
(c) No Conflict. Subject to entry of the Bankruptcy Court order(s) described in
Section 3.1(f) above, the execution and delivery by each Credit Party of this Amendment does 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 in any jurisdiction 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 Term Loan Obligations);
or (d) require any material approval of stockholders, members or partners or any material approval
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 Effective Date and disclosed in writing to Lenders and such material approvals or
material consents required to be obtained in the ordinary course of business.
(d) Governmental Consents. Subject to entry of the Bankruptcy Court order(s)
described in Section 3.1(f) above, no action, consent or approval of or notice to, registration or
other action by any Governmental Authority is required in connection with the execution and
delivery by each Credit Party of this Amendment and the performance by each Credit Party of the
Revolving DIP Credit Agreement and the other Credit Documents.
(e) Binding Obligation. This Amendment has been duly executed and delivered by each
Credit Party that is a party thereto and is the legally valid and binding obligation of such Credit
Party, and subject to entry of the Bankruptcy Court order(s) described in Section 3.1(f) above,
enforceable against such Credit Party in accordance with its respective 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.
(f) Incorporation of Representations and Warranties From Revolving DIP Credit
Agreement. The representations and warranties contained in Section 4 (Representations and
Warranties) of the Revolving DIP Credit Agreement are and will be true, correct and complete in all
material respects on and as of the Effective Date to the same extent as though made on and as of
that date, except to the extent such representations and warranties specifically relate to an
earlier date, in which case they were true, correct and complete in all material respects on and as
of such earlier date.
16
(g) Absence of Default. No event has occurred and is continuing or will result from
the consummation of the transactions contemplated by this Amendment that would constitute an Event
of Default or a Default.
SECTION 5. ACKNOWLEDGMENT AND CONSENT
(a) Each of Holdings and certain Subsidiaries of the Company has (i) guaranteed the
Obligations and (ii) created Liens in favor of Lenders on certain Collateral to secure its
obligations under the Revolving DIP Credit Agreement and the Collateral Documents subject to the
terms and provisions of the Revolving DIP Credit Agreement and the Collateral Documents. Each of
Holdings and certain Subsidiaries of the Company who have guaranteed the Obligations are
collectively referred to herein as the “Credit Support Parties”, and the Revolving DIP Credit
Agreement and the Collateral Documents are collectively referred to herein as the “Credit Support
Documents”.
(b) Each Credit Support Party hereby acknowledges that it has reviewed the terms and
provisions of the Revolving DIP Credit Agreement and this Amendment and consents to the amendment
and waiver of the Revolving DIP Credit Agreement effected pursuant to this Amendment. Each Credit
Support Party hereby confirms that each Credit Support Document to which it is a party or otherwise
bound and all Collateral encumbered thereby will continue to guarantee or secure, as the case may
be, to the fullest extent possible in accordance with the Credit Support Documents the payment and
performance of all “Obligations” under each of the Credit Support Documents, as the case may be (in
each case as such terms are defined in the applicable Credit Support Document), including without
limitation the payment and performance of all such “Obligations” under each of the Credit Support
Documents, as the case may be, in respect of the Obligations of the Company now or hereafter
existing under or in respect of the Revolving DIP Credit Agreement and the Collateral Documents.
(c) Each Credit Support Party acknowledges and agrees that any of the Credit Support Documents
to which it is a party or otherwise bound shall continue in full force and effect and that all of
its obligations thereunder shall be valid and enforceable and shall not be impaired or limited by
the execution or effectiveness of this Amendment.
(d) The Company and each Credit Support Party acknowledges and agrees that, except as
expressly provided herein, nothing in the Revolving DIP Credit Agreement, the Pledge and Security
Agreement, this Amendment or any other Credit Document shall be deemed to constitute an amendment
to or waiver of any Default or Event of Default, or an indication of the Administrative Agent’s or
Lender’s willingness to amend or waive, any other provisions of the Credit Documents.
(e) The Company and each Credit Support Party acknowledges that, following the repayment in
full and replacement of the Term Loan Obligations with the Replacement Term Loan DIP Facility,
Capstone Advisory Group, LLC shall continue to be engaged solely by counsel to the Administrative
Agent, at the Company’s reasonable expense, to provide consulting and advisory services to such
counsel in connection with its representation of the Administrative Agent.
SECTION 6. MISCELLANEOUS
(a) Binding Effect. This Amendment shall be binding upon the parties hereto and their
respective successors and assigns and shall inure to the benefit of the parties hereto and the
successors and assigns of the Lenders.
(b) Severability. In case any provision in or obligation hereunder shall be invalid,
illegal or unenforceable in any jurisdiction, the validity, legality and enforceability of the
remaining
17
provisions or obligations, or of such provision or obligation in any other jurisdiction, shall
not in any way be affected or impaired thereby.
(c) Reference to Revolving DIP Credit Agreement. On and after the Effective Date,
each reference in the Revolving DIP Credit Agreement to “this Agreement”, “hereunder”, “hereof”,
“herein” or words of like import referring to the Revolving DIP Credit Agreement, and each
reference in the other Credit Documents to the “Revolving DIP Credit Agreement”, “thereunder”,
“thereof” or words of like import referring to the Revolving DIP Credit Agreement shall mean and be
a reference to the Revolving DIP Credit Agreement as amended by this Amendment.
(d) Effect on Credit Agreement. Except as specifically amended by this Amendment, the
Revolving DIP Credit Agreement and the other Credit Documents shall remain in full force and effect
and are hereby ratified and confirmed.
(e) Execution. The execution, delivery and performance of this Amendment shall not,
except as expressly provided herein, constitute a waiver of any provision of, or operate as a
waiver of any right, power or remedy of any Agent or Lender under, the Revolving DIP Credit
Agreement or any of the other Credit Documents.
(f) Headings. Section headings herein are included herein for convenience of
reference only and shall not constitute a part hereof for any other purpose or be given any
substantive effect.
(g) APPLICABLE LAW. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF
THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES THEREOF THAT WOULD REQUIRE THE
APPLICATION OF LAWS OTHER THAN THOSE OF THE STATE OF NEW YORK.
(h) Counterparts; Telecopied Signatures. This Amendment may be executed in any number
of counterparts, each of which when so executed and delivered shall be deemed an original, but all
such counterparts together shall constitute but one and the same instrument. Any signature
delivered by a party by facsimile or other electronic transmission shall be deemed to be an
original signature hereto.
(i) Credit Document. This Amendment is a Credit Document.
[The remainder of this page is intentionally left blank.]
18
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed and
delivered by their respective officers thereunto duly authorized as of the date first written
above.
DURA AUTOMOTIVE SYSTEMS, INC. DURA OPERATING CORP. 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. |
||||
By: | /s/ Xxxxxxx Xxxxxx | |||
Name: | ||||
Title: | ||||
[SIGNATURE PAGE TO AMENDMENT No. 5]
DURA SHIFTER L.L.C. By: DURA OPERATING CORP., Its: SOLE MEMBER |
||||
By: | /s/ Xxxxxxx Xxxxxx | |||
Name: | ||||
Title: | ||||
DURA AIRCRAFT OPERATING COMPANY, LLC By: DURA OPERATING CORP., Its: SOLE MEMBER |
||||
By: | /s/ Xxxxxxx Xxxxxx | |||
Name: | ||||
Title: | ||||
DURA BRAKE SYSTEMS, L.L.C. By: DURA OPERATING CORP., Its: SOLE MEMBER |
||||
By: | /s/ Xxxxxxx Xxxxxx | |||
Name: | ||||
Title: | ||||
DURA CABLES NORTH LLC By: XXXXXX AUTOMOTIVE, INC., Its: SOLE MEMBER |
||||
By: | /s/ Xxxxxxx Xxxxxx | |||
Name: | ||||
Title: |
[SIGNATURE PAGE TO AMENDMENT No. 5]
DURA CABLES SOUTH LLC By: XXXXXX AUTOMOTIVE, INC., Its: SOLE MEMBER |
||||
By: | /s/ Xxxxxxx Xxxxxx | |||
Name: | ||||
Title: | ||||
DURA FREMONT L.L.C. DURA GLADWIN L.L.C. DURA MANCELONA L.L.C. DURA SERVICES L.L.C. |
||||
By: | /s/ Xxxxxxx Xxxxxx | |||
Name: | ||||
Title: |
[SIGNATURE PAGE TO AMENDMENT No. 5]
CREATION WINDOWS, LLC XXXXXXXX, LLC |
||||
By: | /s/ Xxxxxxx Xxxxxx | |||
Name: | ||||
Title: | ||||
AUTOMOTIVE AVIATION PARTNERS, LLC By: DURA AIRCRAFT OPERATING COMPANY, LLC, Its: MANAGING MEMBER By: DURA OPERATING CORP., Its: SOLE MEMBER |
||||
By: | /s/ Xxxxxxx Xxxxxx | |||
Name: | ||||
Title: | ||||
DURA G.P. By: DURA OPERATING CORP., Its: MANAGING GENERAL PARTNER |
||||
By: | /s/ Xxxxxxx Xxxxxx | |||
Name: | ||||
Title: |
[SIGNATURE PAGE TO AMENDMENT No. 5]
TRIDENT AUTOMOTIVE, L.P. By: TRIDENT AUTOMOTIVE LIMITED, Its: GENERAL PARTNER |
||||
By: | /s/ Xxxxxxx Xxxxxx | |||
Name: | ||||
Title: | ||||
TRIDENT AUTOMOTIVE, L.L.C. By: TRIDENT AUTOMOTIVE CANADA, CO., Its: MANAGING MEMBER |
||||
By: | /s/ Xxxxxxx Xxxxxx | |||
Name: | ||||
Title: | ||||
PATENT LICENSING CLEARINGHOUSE L.L.C. By: XXXX I MOLDED PLASTICS OF TENNESSEE, INC., Its: SOLE MEMBER |
||||
By: | /s/ Xxxxxxx Xxxxxx | |||
Name: | ||||
Title: |
[SIGNATURE PAGE TO AMENDMENT No. 5]
GENERAL ELECTRIC CAPITAL CORPORATION, as Administrative Agent, Collateral Agent, and a Lender |
||||
By: | /s/ Xxxx X. Xxxxxxx | |||
Name: | Xxxx X. Xxxxxxx | |||
Title: | Duly Authorized Signatory |
[SIGNATURE PAGE TO AMENDMENT No. 5]
BARCLAYS BANK PLC, as a Lender under the Revolving DIP Credit Agreement |
||||
By: | /s/ Xxxxx Xxxxx | |||
Name: | Xxxxx Xxxxx | |||
Title: | Director |
[SIGNATURE PAGE TO AMENDMENT No. 5]
XXXXXXX XXXXX CAPITAL, A DIVISION OF XXXXXXX XXXXX BUSINESS FINANCIAL SERVICES INC., as a Lender under the Revolving DIP Credit Agreement |
||||
By: | /s/ Xxxxxx Xxxxxxx | |||
Name: | Xxxxxx Xxxxxxx | |||
Title: | Assistant Vice President |
[SIGNATURE PAGE TO AMENDMENT No. 5]
Bank of America, N.A., as a Lender under the Revolving DIP Credit Agreement |
||||
By: | /s/ Xxxxxx X. Xxxxxx | |||
Name: | Xxxxxx X. Xxxxxx | |||
Title: | Senior Vice President |
[SIGNATURE PAGE TO AMENDMENT No. 5]
WACHOVIA BANK, NATIONAL ASSOCIATION, as a Lender under the Revolving DIP Credit Agreement |
||||
By: | /s/ Xxxxxxx X. Xxxx | |||
Name: | Xxxxxxx X. Xxxx | |||
Title: | Director | |||
[SIGNATURE PAGE TO AMENDMENT No. 5]