Exhibit 10.28
AMENDMENT NO. 1 AND WAIVER
This AMENDMENT NO. 1 AND WAIVER, dated as of May 1, 2007 (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"), XXXXXXX XXXXX CREDIT PARTNERS
L.P., as Sole Book Runner, Joint Lead Arranger and Syndication Agent, 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, as Issuing Bank.
RECITALS:
WHEREAS, 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;
WHEREAS, the Company has notified the Administrative Agent
that it will be unable to deliver its annual financial statements within 120
days after the end of its Fiscal Year with respect to the fiscal year ended
December 31, 2006, as required by Section 5.1(c) (Annual Financial Statements)
of the Revolving DIP Credit Agreement;
WHEREAS, the Company acknowledges that its failure to comply
with Section 5.1(c) (Annual Financial Statements) of the Revolving DIP Credit
Agreement would result in a Default (such Default, together with any Default or
Event of Default that may exist by reason of any failure to deliver notice of
such Default pursuant to Section 5.1(f) (Notice of Default) of the Revolving DIP
Credit Agreement, together, the "SPECIFIED EVENTS OF DEFAULT");
WHEREAS, the Company has requested that the Administrative
Agent and the Requisite Lenders (i) waive the Specified Events of Default and
(ii) grant to the Company an extension of the period for delivery of the
required annual financial statements with respect to the fiscal year ended
December 31, 2006 as referenced above and comply in all other respects with
Section 5.1(c) (Annual Financial Statements) of the Revolving DIP Credit
Agreement, in each case, until July 17, 2007 (the "EXTENSION");
WHEREAS, concurrently with the execution of this Amendment,
the Company, Holdings, the Term Loan Administrative Agent, and the various
lenders under the Term Loan DIP Credit Agreement will have entered into that
certain Amendment No. 2 and Waiver to the Term Loan DIP Credit Agreement, dated
as of the date hereof (the "TERM LOAN DIP SECOND AMENDMENT"); and
WHEREAS, the Administrative Agent and the Requisite Lenders
have agreed to (i) waive the Specified Events of Default, (ii) consent to the
Extension as requested by the Company until July 17, 2007, (iii) amend Section
5.13(a) (Control Accounts; Approved Deposit Accounts) of the
AMENDMENT AGREEMENT
Revolving DIP Credit Agreement to cure an inconsistency in such section and (iv)
the other matters referred to herein, in each case subject to the terms 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 I. WAIVER AND CONSENT
A. Waiver of Specified Events of Default. Effective as of the Effective
Date (as defined in Section III hereof) and subject to the provisions of Section
I-B (Consent to Extension of Delivery Date) hereof and the satisfaction (or due
waiver) of the conditions set forth in Section III (Conditions Precedent to
Effectiveness) hereof, the Administrative Agent and the Requisite Lenders hereby
waive the Specified Events of Default until July 17, 2007; provided, however,
that the waiver set forth in this Section I shall not excuse any failure to
comply with any other provision of the Credit Agreement or other Credit
Documents.
B. Consent to Extension of Delivery Date. Solely with respect to (i)
the Fiscal Year ended December 31, 2006, the Administrative Agent and the
Requisite Lenders hereby consent to extend the delivery date under Section
5.1(c) (Annual Financial Statements) of the Revolving DIP Credit Agreement until
July 17, 2007. The Company agrees to deliver the financial statements required
under Section 5.1(c) (Annual Financial Statements) of the Revolving DIP Credit
Agreement, together with all other documents and certificates required under the
Revolving DIP Credit Agreement to be delivered concurrently with delivery of the
financial statements required under such Section, no later than July 17, 2007
and acknowledges that any failure to do so will constitute an Event of Default.
SECTION II. AMENDMENTS
Amendment to the Revolving DIP Credit Agreement. Section 5.13(a)
(Control Accounts; Approved Deposit Accounts) of the Revolving DIP Credit
Agreement is hereby amended by (a) replacing the word "and" immediately before
clause (z) thereof with "," and (b) adding the following at the end of clause
(z) thereof: "and (aa) maintain any Deposit Account in which the Company
maintains any Investment permitted by Section 6.7(h)".
SECTION III. CONDITIONS PRECEDENT TO EFFECTIVENESS
The effectiveness of each of (i) the waiver and consent set Forth in
Section I hereof and (ii) the amendment set forth in Section II hereof is
subject to the satisfaction, or waiver, of the following conditions on or before
the date hereof (the "EFFECTIVE DATE"):
(a) the Administrative Agent shall have received this Amendment, duly
executed by each of the Credit Parties, the Administrative Agent and the
Requisite Lenders;
(b) the Administrative Agent shall have received the Term Loan DIP
Second Amendment, duly executed by each of the parties thereto;
(c) the Administrative Agent shall have received such additional
documents, instruments and information as the Administrative Agent may
reasonably request; and
(d) the representations and warranties set forth in Section IV shall be
true and correct as of the Effective Date.
AMENDMENT AGREEMENT
2
SECTION IV. REPRESENTATIONS AND WARRANTIES
The Company and each other Credit Party hereby represents and
warrants that:
A. CORPORATE POWER AND AUTHORITY. 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. The execution and delivery of
this Amendment has been duly authorized by all necessary action on the part of
each Credit Party that is a party thereto.
C. NO CONFLICT. 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. 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, 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 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.
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.
AMENDMENT AGREEMENT
3
SECTION V. ACKNOWLEDGMENT AND CONSENT
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".
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.
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.
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 (other than the Specified Events 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.
SECTION VI. 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 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.
AMENDMENT AGREEMENT
4
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.
F. 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.
G. 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.
H. 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. 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.
I. CREDIT DOCUMENT. This Amendment is a Credit Document (as
defined in the Revolving DIP Credit Agreement).
[The remainder of this page is intentionally left blank.]
AMENDMENT AGREEMENT
5
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:
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Name:
Title:
[SIGNATURE PAGE TO AMENDMENT No. 1 AND WAIVER]
DURA SHIFTER L.L.C.
By: DURA OPERATING CORP.,
Its: SOLE MEMBER
By:
--------------------------------
Name:
Title:
DURA AIRCRAFT OPERATING COMPANY, LLC
By: DURA OPERATING CORP.,
Its: SOLE MEMBER
By:
--------------------------------
Name:
Title:
DURA BRAKE SYSYEMS, L.L.C.
By: DURA OPERATING CORP.,
Its: SOLE MEMBER
By:
--------------------------------
Name:
Title:
DURA CABLES NORTH LLC
By: XXXXXX AUTOMOTIVE, INC.,
Its: SOLE MEMBER
By:
--------------------------------
Name:
Title:
[SIGNATURE PAGE TO AMENDMENT No. 1 AND WAIVER]
DURA CABLES SOUTH LLC
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.
By:
--------------------------------
Name:
Title:
[SIGNATURE PAGE TO AMENDMENT No. 1 AND WAIVER]
CREATION WINDOWS, LLC
XXXXXXXX, LLC
By:
-------------------------------------
Name:
Title:
AUTOMOTIVE AVIATION PARTNERS, LLC
By: DURA AIRCRAFT OPERATING COMPANY, LLC,
Its: MANAGING MEMBER
By: DURA OPERATING CORP.,
Its: SOLE MEMBER
By:
-------------------------------------
Name:
Title:
DURA G.P.
By: DURA OPERATING CORP.,
Its: MANAGING GENERAL PARTNER
By:
-------------------------------------
Name:
Title:
[SIGNATURE PAGE TO AMENDMENT No. 1 AND WAIVER]
TRIDENT AUTOMOTIVE, L.P.
By: TRIDENT AUTOMOTIVE LIMITED, Its:
GENERAL PARTNER
By:
-----------------------------------
Name:
Title:
TRIDENT AUTOMOTIVE, L.L.C.
By: TRIDENT AUTOMOTIVE CANADA, CO.,
Its: MANAGING MEMBER
By:
-----------------------------------
Name:
Title:
PATENT LICENSING CLEARINGHOUSE L.L.C.
By: XXXX I MOLDED PLASTICS OF
TENNESSEE, INC.,
Its: SOLE MEMBER
By:
-----------------------------------
Name:
Title:
[SIGNATURE PAGE TO AMENDMENT No. 1 AND WAIVER]
DURA AUTOMOTIVE CANADA ULC
By:
------------------------------------
Name:
Title:
DURA AUTOMOTIVE SYSTEMS (CANADA), LTD.
By:
------------------------------------
Name:
Title:
DURA OPERATING CANADA LP, BY ITS GENERAL
PARTNER, DURA AUTOMOTIVE SYSTEMS OF
INDIANA, INC.
By:
-------------------------------------
Name:
Title:
DURA ONTARIO, INC.
By:
-------------------------------------
Name:
Title:
DURA CANADA LP, BY ITS GENERAL PARTNER,
DURA ONTARIO, INC.
By:
------------------------------------
Name:
Title:
DURA HOLDINGS ULC
By:
------------------------------------
Name:
Title:
[SIGNATURE PAGE TO AMENDMENT Xx. 0 XXX XXXXXX]
XXXX XXXXXXXX XXXXXX LP, BY ITS GENERAL
PARTNER, DURA HOLDINGS ULC
By:
------------------------------------
Name:
Title:
TRIDENT AUTOMOTIVE LIMITED
By:
------------------------------------
Name:
Title:
TRIDENT AUTOMOTIVE CANADA CO.
By:
------------------------------------
Name:
Title:
[SIGNATURE PAGE TO AMENDMENT No. 1 AND WAIVER]
GENERAL ELECTRIC CAPITAL CORPORATION,
as Administrative Agent, Collateral Agent, and a Lender
By:
---------------------------------------------------
Name:
Title:
[SIGNATURE PAGE TO AMENDMENT No. 1 AND WAIVER]
[NAME OF LENDER],
as a Lender under the Revolving DIP Credit Agreement
By:
------------------------------------------------
Name:
Title:
[SIGNATURE PAGE TO AMENDMENT No. 1 AND WAIVER]
