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EXHIBIT 4.3
SECOND SUPPLEMENTAL INDENTURE
Supplemental Indenture (this "Supplemental Indenture"), dated as of June
1, 2001, by and among Xxxxxx Mobile Products, Inc., an Illinois corporation
(the "Guaranteeing Subsidiary"), Dura Operating Corp., a Delaware corporation
(the "Issuer"), Dura Automotive Systems, Inc., a Delaware corporation
("Parent"), Dura Automotive Systems Cable Operations, Inc., a Delaware
corporation, Universal Tool & Stamping Company Inc., an Indiana corporation,
Adwest Electronics, Inc., a Delaware corporation, Dura Automotive Systems of
Indiana, Inc., an Indiana corporation, Xxxxxx Automotive Inc., a Michigan
corporation and Xxxx I Molded Plastics of Tennessee, Inc., a Tennessee
corporation (together with Parent, the "Original Guarantors") and U.S. Bank
Trust National Association, as trustee (the "Trustee") under the Indenture.
Capitalized terms used herein without definition shall have the meanings
assigned to them in the Indenture.
WITNESSETH
WHEREAS, the Issuer and the Original Guarantors have previously 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
$350,000,000 of 9% Senior Subordinated Notes due 2009;
WHEREAS, the Issuer has completed a corporate restructuring, which
included, among other things, the formation of the Guarantying Subsidiary and
the merger of Hydro Flame Corporation, an Original Guarantor under the
Indenture, with and into the Guarantying Subsidiary.
WHEREAS, Section 11.05 of the Indenture provides that the person acquiring
the property of a Guarantor in a merger must assume all of the obligations of
the Guarantor under the Indenture pursuant to a Supplemental Indenture; and
WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee is
authorized to execute and deliver this Supplemental Indenture.
NOW THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt of which is hereby acknowledged, the parties
hereto mutually covenant and agree for the equal and ratable benefit of the
Holders of the Securities as follows:
1. Agreement to Guarantee. The Guaranteeing Subsidiary hereby agree as
follows:
(a) Along with all Guarantors named in the Indenture, to unconditionally
guarantee (each such guarantee to be referred to herein as a "Note
Guarantee") to each Holder of a Note authenticated and delivered by
the Trustee and to the Trustee and its successors and
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assigns, irrespective of the validity and enforceability of this
Supplemental Indenture, the Notes or the obligations of the Issuer
hereunder or thereunder, that: (i) the principal of and interest on
the Notes will be promptly paid in full when due, whether at maturity,
by acceleration, redemption or otherwise, and interest on the overdue
principal of and interest on the Notes, if any, if lawful, and all
other obligations of the Issuer to the Holders or the Trustee
hereunder or thereunder will be promptly paid in full or performed,
all in accordance with the terms hereof and thereof; and (ii) in case
of any extension of time of payment or renewal of any Notes or any of
such other obligations, that same will be promptly paid in full when
due or performed in accordance with the terms of the extension or
renewal, whether at stated maturity, by acceleration or otherwise.
Failing payment when due of any amount so guaranteed or any
performance so guaranteed for whatever reason, the Guaranteeing
Subsidiary shall be jointly and severally obligated to pay the same
immediately. The Guaranteeing Subsidiary agrees that this is a
guarantee of payment and not a guarantee of collection.
(b) The Guaranteeing Subsidiary hereby agrees that its obligations
hereunder shall be unconditional, irrespective of the validity,
regularity or enforceability of the Notes or this Supplemental
Indenture, the absence of any action to enforce the same, any waiver
or consent by any Holder of the Notes with respect to any provisions
hereof or thereof, the recovery of any judgment against the Issuer,
any action to enforce the same or any other circumstance which might
otherwise constitute a legal or equitable discharge or defense of any
other Guarantor. The Guaranteeing Subsidiary hereby waives diligence,
presentment, demand of payment, filing of claims with a court in the
event of insolvency or bankruptcy of the Issuer, any right to require
a proceeding first against the Issuer, protest, notice and all demands
whatsoever and covenants that its Note Guarantee shall not be
discharged except by complete performance of the obligations contained
in the Notes, the Indenture and this Note Guarantee.
(c) If any Holder or the Trustee is required by any court or otherwise to
return to the Issuer, to any Guarantor, or any custodian, trustee,
liquidator or other similar official acting in relation to either the
Issuer or to any Guarantor, any amount paid by either to the Trustee
or such Holder, the Note Guarantee, to the extent theretofore
discharged, shall be reinstated in full force and effect.
(d) The Guaranteeing Subsidiary agrees that it shall not be entitled to
any right of subrogation in relation to the Holders in respect of any
Note Guarantee until payment in full of all obligations guaranteed
under this Supplemental Indenture. The Guaranteeing Subsidiary further
agrees that, as between it, on the one hand, and the Holders and the
Trustee, on the other hand, (x) the maturity of the obligations
guaranteed hereby may be accelerated as provided in Article 6 of the
Indenture for the purposes of this Note Guarantee, notwithstanding any
stay, injunction or other prohibition preventing such acceleration in
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respect of the obligations guaranteed hereby, and (y) in the event of
any declaration of acceleration of such obligations as provided in
Article 6 of the Indenture, such obligations (whether or not due and
payable) shall forthwith become due and payable by the Guaranteeing
Subsidiary for the purpose of this Note Guarantee. The Guaranteeing
Subsidiary shall have the right to seek contribution from any
non-paying Guarantor so long as the exercise of such right does not
impair the rights of the Holders under this Note Guarantee.
2. Incorporation of Terms of Indenture. The obligations of the Guaranteeing
Subsidiary under the Note Guarantees shall be governed in all respects by the
terms of the Indenture and shall constitute a Guarantee thereunder. Each of the
parties hereto shall be bound by the terms of the Indenture as they relate to
the Note Guarantees.
3. No Recourse Against Others. No stockholder, officer, director, employee
or incorporator, past, present or future, or the Guaranteeing Subsidiary, as
such, shall have any personal liability under this Note Guarantee by reason of
his, her or its status as such stockholder, officer, director, employee or
incorporator.
4. NEW YORK LAW TO GOVERN. THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL
GOVERN AND BE USED TO CONSTRUE THIS SUPPLEMENTAL 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.
5. Counterparts. The parties may sign any number of copies of this
Supplemental Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement.
6. Effect of Headings. The Section headings herein are for convenience only
and shall not affect the construction hereof.
7. Disclaimer by Trustee. The Trustee makes no representation as to the
validity of this Supplemental Indenture or the proper authorization or due
execution of this Supplemental Indenture by the Issuer, the Original Guarantors
or the Guaranteeing Subsidiary.
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed and attested, all as of the date first above
written.
Dated: June 1, 2001
XXXXXX MOBILE PRODUCTS, INC.
BY: /s/ Xxxxx X. Xxxxx
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NAME: Xxxxx X. Xxxxx
ITS: President, Chief Financial Officer
and Treasurer
DURA OPERATING CORP.
BY: /s/ Xxxxx X. Xxxxx
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NAME: Xxxxx X. Xxxxx
ITS: President, Chief Financial Officer
and Assistant Secretary
DURA AUTOMOTIVE SYSTEMS CABLE
OPERATIONS, INC.
BY: /s/ Xxxxx X. Xxxxx
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NAME: Xxxxx X. Xxxxx
ITS: President, Chief Financial Officer
and Treasurer
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[Signature Page to Supplemental Indenture cont.]
UNIVERSAL TOOL & STAMPING COMPANY
INC.
BY: /s/ Xxxxx X. Xxxxx
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NAME: Xxxxx X. Xxxxx
ITS: President, Chief Financial Officer
and Treasurer
ADWEST ELECTRONICS, INC.
BY: /s/ Xxxxx X. Xxxxx
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NAME: Xxxxx X. Xxxxx
ITS: President, Chief Financial Officer
and Treasurer
DURA AUTOMOTIVE SYSTEMS OF INDIANA,
INC.
BY: /s/ Xxxxx X. Xxxxx
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NAME: Xxxxx X. Xxxxx
ITS: President, Chief Financial Officer
and Treasurer
XXXXXX AUTOMOTIVE INC.
BY: /s/ Xxxxx X. Xxxxx
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NAME: Xxxxx X. Xxxxx
ITS: President, Chief Financial Officer
and Treasurer
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[Signature Page to Supplemental Indenture cont.]
XXXX I MOLDED PLASTICS OF TENNESSEE,
INC.
BY: /s/ Xxxxx X. Xxxxx
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NAME: Xxxxx X. Xxxxx
ITS: President, Chief Financial Officer
and Treasurer
DURA AUTOMOTIVE SYSTEMS, INC.
BY: /s/ Xxxxx X. Xxxxx
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NAME: Xxxxx X. Xxxxx
ITS: President, Chief Financial Officer
and Assistant Secretary
U.S. BANK TRUST NATIONAL ASSOCIATION,
as Trustee
BY: /s/ Xxxxxxx X. Xxxxxxxx
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NAME: Xxxxxxx X. Xxxxxxxx
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ITS: Vice President
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