EXHIBIT 10.20
FIFTH AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
This FIFTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT dated as
of December 30, 2002 (this "Amendment") is entered into among DURA AUTOMOTIVE
SYSTEMS, INC., as Parent Guarantor ("DASI"), DURA OPERATING CORP. and various of
its Subsidiaries listed on the signature pages hereto as Borrowers (the
"Borrowers"), the LENDERS party hereto, JPMORGAN CHASE BANK, as Syndication
Agent, BANK OF AMERICA, N.A., acting through its Canada Branch (as assignee of
Bank of America Canada), as Canadian Lender, and BANK OF AMERICA, N.A., as Swing
Line Lender, as Issuing Lender and as agent for the Lenders (the "Agent").
RECITALS
A. DASI, the Borrowers, the Lenders and the Agent are parties to that
certain Amended and Restated Credit Agreement dated as of March 19, 1999, as
amended as of May 10, 2001, June 15, 2001, August 24, 2001 and April 17, 2002
(the "Agreement").
B. The Borrowers, the Required Lenders and the Agent wish to amend the
Agreement in certain respects with respect to certain financial covenants
therein and in certain other respects.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Certain Defined Terms. Capitalized terms which are used herein
without definition and that are defined in the Agreement shall have the same
meanings herein as in the Agreement.
2. Amendments to Agreement. The Agreement is hereby amended as follows:
2.1 Section 1.1 of the Agreement is amended as of the Amendment
Effective Date by amending the following definitions of "Senior Leverage Ratio"
and "Total Debt to EBITDA Ratio" to read in their entirety as follows:
"Senior Leverage Ratio means, as of the last day of any fiscal
quarter, the ratio of
(a) the consolidated Indebtedness of DASI and its Subsidiaries
as of such day,
(i) excluding from such consolidated Indebtedness, to the
extent, if any, included therein, (A) the Trust Preferred Stock
Debentures and the Trust Preferred Securities, and (B) all
Subordinated Indebtedness, and
(ii) for purposes of Section 11.12 only, if on the last
day of such fiscal quarter the aggregate outstanding principal
Dollar Equivalent amount of the Revolving Loans (excluding the
aggregate undrawn Dollar Equivalent amount of all Letters of
Credit outstanding) is less than U.S.$35,000,000, subtracting
from such consolidated Indebtedness any amount of cash and cash
equivalents in excess of U.S.$25,000,000 held by DASI and its
Subsidiaries on the last day of such fiscal quarter,
to
(b) EBITDA for the Computation Period ending on such day.
If DASI or any Subsidiary makes any Acquisition, the Senior
Leverage Ratio shall be calculated on a combined basis during the
first 12 months following such Acquisition based on the assumption
that
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such Acquisition had been completed (and the financial results of the
acquired Person or assets had been included in the consolidated
financial results of DASI beginning) on the first day of the relevant
Computation Period (but without adjustment for any cost savings or
other synergies attributable to such Acquisition for the period prior
to the date of such Acquisition).
If DASI or any Subsidiary sells or otherwise transfers any
or all of its interest in any Subsidiary (the "Disposed Subsidiary")
to another Person or Persons so that such Disposed Subsidiary is no
longer a Subsidiary of DASI or if DASI or any Subsidiary sells or
otherwise transfers substantially all of its assets in any business
unit, line or plant (the "Disposed Business") to another Person or
Persons that are neither DASI nor Subsidiaries, the Senior Leverage
Ratio shall be calculated on a pro forma basis during the first 12
months following such sale or other transfer of such Disposed
Subsidiary or Disposed Business based on the assumption that such sale
or other transfer had been completed (and the financial results of
such Disposed Subsidiary or Disposed Business had been excluded in the
consolidated financial results of DASI beginning) on the first day of
the relevant Computation Period."
"Total Debt to EBITDA Ratio means, as of the last day of any
fiscal quarter, the ratio of
(a) the consolidated Indebtedness of DASI and its Subsidiaries
as of such day, (i) excluding from such consolidated Indebtedness, to
the extent, if any, included therein, the Trust Preferred Stock
Debentures and the Trust Preferred Securities, and (ii), if on the
last day of such fiscal quarter the aggregate outstanding principal
Dollar Equivalent amount of the Revolving Loans (excluding the
aggregate undrawn Dollar Equivalent amount of all Letters of Credit
outstanding) is less than U.S.$35,000,000, subtracting from such
consolidated Indebtedness any amount of cash and cash equivalents in
excess of U.S.$25,000,000 held by DASI and its Subsidiaries on the
last day of such fiscal quarter,
to
(b) EBITDA for the Computation Period ending on such day.
If DASI or any Subsidiary makes any Acquisition, the Total
Debt to EBITDA Ratio shall be calculated on a combined basis during
the first 12 months following such Acquisition based on the assumption
that such Acquisition had been completed (and the financial results of
the acquired Person or assets had been included in the consolidated
financial results of DASI beginning) on the first day of the relevant
Computation Period (but without adjustment for any cost savings or
other synergies attributable to such Acquisition for the period prior
to the date of such Acquisition).
If DASI or any Subsidiary sells or otherwise transfers any
or all of its interest in any Subsidiary (the "Disposed Subsidiary")
to another Person or Persons so that such Disposed Subsidiary is no
longer a Subsidiary of DASI or if DASI or any Subsidiary sells or
otherwise transfers substantially all of its assets in any business
unit, line or plant (the "Disposed Business") to another Person or
Persons that are neither DASI nor Subsidiaries, the Total Debt to
EBITDA Ratio shall be calculated on a pro forma basis during the first
12 months following such sale or other transfer of such Disposed
Subsidiary or Disposed Business based on the assumption that such sale
or other transfer had been completed (and the financial results of
such Disposed Subsidiary or Disposed Business had been excluded in the
consolidated financial results of DASI beginning) on the first day of
the relevant Computation Period."
Sections 11.10 and 11.11 of the Agreement are amended as of the
Amendment Effective Date to read in their entirety as
follows:
"11.10 Fixed Charge Coverage Ratio. DASI shall not permit,
as of the last day of the following fiscal quarters, the ratio of (a)
the sum of Consolidated Net Income before Interest Expense (including
to the extent, if any, excluded therefrom, distributions in respect of
the Trust Preferred Stock Debentures), income tax expense,
amortization expense and operating lease expense (excluding any
non-cash extraordinary charges and other non-cash charges and any
gains and losses from dispositions of a Disposed Business or Disposed
Subsidiary) for the Computation Period ending on such day, to (b) the
sum of Interest Expense (including, to the extent, if any, excluded
therefrom, distributions (computed on a pre-tax basis) in
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respect of the Trust Preferred Stock Debentures) and operating lease
expense of DASI and its Subsidiaries for such Computation Period, to
be less than the following ratios:
Fiscal Quarter Ending Ratio
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Any fiscal quarter ending
on or after March 31, 2002 and
on or prior to March 31, 2003 1.40:1
Any fiscal quarter ending
thereafter 1.50:1
"11.11 Net Worth. DASI shall not permit the sum of (x) its
consolidated stockholders equity (excluding currency translation
adjustments after December 31, 2001 but including the Trust Preferred
Stock or, if issued, the Trust Preferred Stock Debentures of DASI)
plus (y) the amount of any extraordinary non-cash charge with respect
to goodwill effected in 2002 in implementing FAS No. 142, in each case
determined as of the last day of any fiscal quarter, to be less than
the sum of (i) U.S. $340,000,000 plus (ii) 75% of the Net Cash
Proceeds of equity securities of DASI issued on or after December 31,
2001."
3. Representations and Warranties. DASI and each Borrower hereby
represent and warrant to the Agent and the Lenders as follows:
(i) Representations and Warranties. The representations and
warranties contained in Article IX of the Agreement are true and
correct in all material respects as of the date hereof (except to the
extent such representations and warranties expressly refer to an
earlier date, in which case they are true and correct as of such
earlier date).
(ii) Enforceability. The execution and delivery by DASI and
each Borrower of this Amendment, and the performance by DASI and each
Borrower of this Amendment and the Agreement, as amended hereby, are
within the corporate powers of DASI and each Borrower and have been
duly authorized by all necessary corporate action on the part of DASI
and each Borrower. This Amendment and the Agreement, as amended
hereby, are valid and legally binding obligations of DASI and each
Borrower, enforceable in accordance with their terms, except as
enforceability may be limited by applicable bankruptcy, insolvency or
similar laws affecting the enforcement of creditors' rights generally
or by equitable principles relating to enforceability.
(iii) No Default. After giving effect to the terms of this
Amendment, no Event of Default or Unmatured Event of Default shall
have occurred and be continuing.
(iv) No Material Adverse Effect. No Material Adverse Effect
has occurred and is continuing since December 31, 2001.
4. Effect of Amendment. Except as expressly amended and modified by
this Amendment, all provisions of the Agreement shall remain in full force and
effect; and DASI and the Borrowers confirm and reaffirm their Obligations under
the Agreement as amended by this Amendment. After this Amendment becomes
effective, all references in the Agreement (or in any other Loan Document) to
"this Agreement", "hereof", "herein" or words of similar effect referring to the
Agreement shall be deemed to be references to the Agreement as amended by this
Amendment. This Amendment shall not be deemed to expressly or impliedly waive,
amend or supplement any provision of the Agreement other than as set forth
herein.
5. Effectiveness. This Amendment shall become effective as of December
30, 2002 (the "Amendment Effective Date"), provided that all of the following
shall have occurred on or before February 17, 2003: (i) receipt by the Agent of
counterparts of this Amendment (whether by facsimile or otherwise) executed by
DASI, the Borrowers, the Agent and the Required Lenders, and (ii) receipt by the
Agent for the benefit of each Lender consenting to this
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Amendment of an amendment fee paid by Dura in immediately available funds equal
to 0.05% of the aggregate amount of such Lender's Commitments and Term Loans.
6. Counterparts. This Amendment may be executed in any number of
counterparts and by different parties on separate counterparts, and each
counterpart shall be deemed to be an original, and all such counterparts shall
together constitute but one and the same instrument. A facsimile of the
signature of any party on any counterpart shall be effective as the signature of
the party executing such counterpart for purposes of the effectiveness of this
Amendment.
7. Governing Law. This Amendment shall be governed by, and construed in
accordance with, the internal laws of the State of Illinois; provided that the
Agent and the Lenders shall retain all rights arising under Federal law.
8. Section Headings. The various headings of this Amendment are
inserted for convenience only and shall not affect the meaning or interpretation
of this Amendment or the Agreement or any provision hereof or thereof.
IN WITNESS WHEREOF, the parties have executed this Amendment as of the
date first above written.
DURA AUTOMOTIVE SYSTEMS, INC.
By: /s/ XXXXX X. XXXXX
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Title: VICE PRESIDENT & CFO
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DURA OPERATING CORP.
By: /s/ XXXXX X. XXXXX
-------------------
Title: VICE PRESIDENT & CFO
--------------------
BANK OF AMERICA, N.A., AS AGENT
By: /s/ XXXXX XXXXX
----------------
Title: VICE PRESIDENT
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