EXHIBIT 4.9
SUPPLEMENTAL INDENTURE
SUPPLEMENTAL INDENTURE (this "Supplemental Indenture"), dated as of
October 31, 2003, among Creation Group Holdings, Inc., an Indiana corporation,
Creation Group, Inc., an Indiana corporation (each a "Guaranteeing Subsidiary"
and together the "Guaranteeing Subsidiaries"), which are subsidiaries of Dura
Operating Corp. (or its permitted successor), a Delaware corporation (the
"Company"), the Company, the other Guarantors (as defined in the Indenture
referred to herein) and BNY Midwest Trust Company, as trustee under the
indenture referred to below (the "Trustee").
W I T N E S S E T H
WHEREAS, the Company has heretofore executed and delivered to the
Trustee an indenture (the "Indenture"), dated as of April 18, 2002, providing
for the issuance of an aggregate principal amount of $350.0 million of 8 5/8%
Senior Notes due 2012 (the "Notes");
WHEREAS, the Indenture provides that under certain circumstances each
Guaranteeing Subsidiary shall execute and deliver to the Trustee a supplemental
indenture pursuant to which such Guaranteeing Subsidiary shall unconditionally
guarantee all of the Company's Obligations under the Notes and the Indenture on
the terms and conditions set forth herein (each a "Subsidiary Guarantee" and
together the "Subsidiary Guarantees"); and
WHEREAS, pursuant to Section 9.06 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, each
Guaranteeing Subsidiary and the Trustee mutually covenant and agree for the
equal and ratable benefit of the Holders of the Notes as follows:
1. CAPITALIZED TERMS. Capitalized terms used herein without definition
shall have the meanings assigned to them in the Indenture.
2. AGREEMENT TO GUARANTEE. Each Guaranteeing Subsidiary hereby agrees
as follows:
(a) Along with all Guarantors named in the Indenture, to jointly and
severally guarantee to each Holder of a Note authenticated and
delivered by the Trustee and to the Trustee and its successors and
assigns, the Notes or the obligations of the Company 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 Company 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
Guarantors shall be jointly and severally obligated to pay
the same immediately.
(b) The obligations hereunder shall be unconditional, irrespective of
the validity, regularity or enforceability of the Notes or the
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 Company, any action to enforce the same or any other
circumstance which might otherwise constitute a legal or equitable
discharge or defense of a guarantor.
(c) The following is hereby waived: diligence, presentment, demand of
payment, filing of claims with a court in the event of insolvency
or bankruptcy of the Company, any right to require a proceeding
first against the Company, protest, notice and all demands
whatsoever.
(d) This Subsidiary Guarantee shall not be discharged except by
complete performance of the obligations contained in the Notes and
the Indenture.
(e) If any Holder or the Trustee is required by any court or otherwise
to return to the Company, the Guarantors, or any Custodian,
trustee, liquidator or other similar official acting in relation
to either the Company or the Guarantors, any amount paid by either
to the Trustee or such Holder, this Subsidiary Guarantee, to the
extent theretofore discharged, shall be reinstated in full force
and effect.
(f) The Guaranteeing Subsidiary shall not be entitled to any right of
subrogation in relation to the Holders in respect of any
obligations guaranteed hereby until payment in full of all
obligations guaranteed hereby.
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(g) As between the Guarantors, 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 Subsidiary
Guarantee, notwithstanding any stay, injunction or other
prohibition preventing such acceleration in 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
Guarantors for the purpose of this Subsidiary Guarantee.
(h) The Guarantors 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 the Guarantee.
(i) Pursuant to Section 10.03 of the Indenture, after giving effect to
any maximum amount and any other contingent and fixed liabilities
that are relevant under any applicable Bankruptcy or fraudulent
conveyance laws, and after giving effect to any collections from,
rights to receive contribution from or payments made by or on
behalf of any other Guarantor in respect of the obligations of
such other Guarantor under Article 10 of the Indenture shall
result in the obligations of such Guarantor under its Subsidiary
Guarantee not constituting a fraudulent transfer or conveyance.
3. EXECUTION AND DELIVERY. Each Guaranteeing Subsidiary agrees that the
Subsidiary Guarantees shall remain in full force and effect notwithstanding any
failure to endorse on each Note a notation of such Subsidiary Guarantee.
4. GUARANTEEING SUBSIDIARIES MAY CONSOLIDATE, ETC. ON CERTAIN TERMS.
(a) The Guaranteeing Subsidiaries may not sell or otherwise dispose of
all or substantially all of their assets to, or consolidate with
or merge with or into (whether or not such Guaranteeing Subsidiary
is the surviving Person) another Person unless:
(i) immediately after giving effect to such transaction, no
Default or Event of Default exists; and
(ii) either:
(A) the Person acquiring the property in any such sale or
disposition or the Person formed by or surviving any
such consolidation or merger assumes all the
obligations of such Guaranteeing Subsidiary under
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the Indenture, the Guaranty and the Registration
Rights Agreement, pursuant to a supplemental indenture
satisfactory to the Trustee and appropriate collateral
documents satisfactory to the Trustee; or
(B) the Net Proceeds of such sale or other disposition are
applied in accordance with the applicable provisions
of the Indenture.
(b) In case of any such consolidation, merger, sale or conveyance and
upon the assumption by the successor Person, by supplemental
indenture, executed and delivered to the Trustee and satisfactory
in form to the Trustee, of the Subsidiary Guarantees endorsed upon
the Notes and the due and punctual performance of all of the
covenants and conditions of the Indenture to be performed by the
Guarantor, such successor corporation shall succeed to and be
substituted for the Guarantor with the same effect as if it had
been named herein as a Guarantor. Such successor corporation
thereupon may cause to be signed any or all of the Subsidiary
Guarantees to be endorsed upon all of the Notes issuable hereunder
which theretofore shall not have been signed by the Company and
delivered to the Trustee. All the Subsidiary Guarantees so issued
shall in all respects have the same legal rank and benefit under
the Indenture as the Subsidiary Guarantees theretofore and
thereafter issued in accordance with the terms of the Indenture as
though all of such Subsidiary Guarantees had been issued at the
date of the execution hereof.
(c) Except as set forth in Articles 4 and 5 of the Indenture, and
notwithstanding clauses (a) and (b) above, nothing contained in
the Indenture or in any of the Notes shall prevent any
consolidation or merger of a Guarantor with or into the Company or
another Guarantor, or shall prevent any sale or conveyance of the
property of a Guarantor as an entirety or substantially as an
entirety to the Company or another Guarantor.
5. RELEASES.
(a) The Subsidiary Guarantee of a Guarantor will be released (i) in
connection with any sale or other disposition of all or
substantially all of the assets of that Guarantor (including by
way of merger or consolidation), to a Person that is not (either
before or after giving effect to such transaction) a Restricted
Subsidiary of the Company, if the Guarantor applies the Net
Proceeds of that sale or other disposition in accordance with
Section 4.10 of the Indenture; (ii) in connection with any sale of
all of the capital stock of a Guarantor to a person that is not
(either before or after giving effect to such
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transaction) a Restricted Subsidiary of the Company, if the
Company applies the Net Proceeds of that sale in accordance with
Section 4.10 of the Indenture; (iii) if the Company properly
designates any Restricted Subsidiary that is a Guarantor as an
Unrestricted Subsidiary; (iv) if that Guarantor ceases to
guarantee, pledge any of its assets or otherwise provide direct or
indirect credit support for any Indebtedness or other obligations
of Dura Automotive Systems, Inc., the Company or any Restricted
Subsidiary; or (v) in connection with the sale, disposition or
transfer of all of the assets of a Guarantor to another Guarantor
or the Company. Upon delivery by the Company to the Trustee of an
Officers' Certificate and an Opinion of Counsel to the effect that
such sale or other disposition was made by the, Company in
accordance with the provisions of the Indenture, including without
limitation Section 4.10 of the Indenture, the Trustee shall
execute any documents reasonably required in order to evidence the
release of any Guarantor from its obligations under its Subsidiary
Guarantee.
(b) Any Guarantor not released from its obligations under its
Subsidiary Guarantee shall remain liable for the full amount of
principal of and interest on the Notes and for the other
obligations of any Guarantor under the Indenture as provided in
Article 10 of the Indenture.
6. NO RECOURSE AGAINST OTHERS. No past, present or future director,
officer, employee, incorporator, stockholder or agent of the Guaranteeing
Subsidiaries, as such, shall have any liability for any obligations of the
Company or any Guaranteeing Subsidiary under the Notes, any Subsidiary
Guarantees, the Indenture or this Supplemental Indenture or for any claim based
on, in respect of, or by reason of, such obligations or their creation. Each
Holder of the Notes by accepting a Note waives and releases all such liability.
The waiver and release are part of the consideration for issuance of the Notes.
Such waiver may not be effective to waive liabilities under the federal
securities laws and it is the view of the Commission that such a waiver is
against public policy.
7. 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.
8. 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.
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9. EFFECT OF HEADINGS. The Section headings herein are for convenience
only and shall not affect the construction hereof.
10. THE TRUSTEE. The Trustee shall not be responsible in any manner
whatsoever for or in respect of the validity or sufficiency of this Supplemental
Indenture or for or in respect of the recitals contained herein, all of which
recitals are made solely by the Guaranteeing Subsidiaries and the Company.
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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: ____________, 2003
CREATION GROUP HOLDINGS, INC.
By:
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Name: Xxxxx X. Xxxxx
Its: President, Chief Financial
Officer and Treasurer
CREATION GROUP, INC.
By:
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Name: Xxxxx X. Xxxxx
Its: President, Chief Financial
Officer and Treasurer
DURA G.P.
By: Dura Operating Corp.
Its: General Partner
By:
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Name: Xxxxx X. Xxxxx
Its: Vice President, Chief Financial
Officer and Assistant Secretary
DURA OPERATING CORP.
By:
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Name: Xxxxx X. Xxxxx
Its: Vice President, Chief Financial
Officer and Assistant Secretary
DURA AUTOMOTIVE SYSTEMS
CABLE OPERATIONS, INC.
By:
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Name: Xxxxx X. Xxxxx
Its: President, Chief Financial
Officer and Treasurer
UNIVERSAL TOOL & STAMPING COMPANY INC.
By:
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Name: Xxxxx X. Xxxxx
Its: President, Chief Financial
Officer and Treasurer
ADWEST ELECTRONICS, INC.
By:
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Name: Xxxxx X. Xxxxx
Its: President, Chief Financial
Officer and Treasurer
DURA AUTOMOTIVE SYSTEMS OF
INDIANA, INC.
By:
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Name: Xxxxx X. Xxxxx
Its: President, Chief Financial
Officer and Treasurer
XXXXXX AUTOMOTIVE INC.
By:
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Name: Xxxxx X. Xxxxx
Its: President, Chief Financial
Officer and Treasurer
XXXX I MOLDED PLASTICS OF
TENNESSEE, INC.
By:
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Name: Xxxxx X. Xxxxx
Its: President, Chief Financial
Officer and Treasurer
DURA AUTOMOTIVE SYSTEMS, INC.
By:
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Name: Xxxxx X. Xxxxx
Its: Vice President, Chief Financial
Officer and Assistant Secretary
XXXXXX MOBILE PRODUCTS, INC.
By:
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Name: Xxxxx X. Xxxxx
Its: President, Chief Financial
Officer and Treasurer
BNY MIDWEST TRUST COMPANY, as Trustee
By:
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Name:
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Its:
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