EXHIBIT 10.31
WGM DRAFT
11/29/06
AMENDMENT AGREEMENT
This AMENDMENT AGREEMENT, dated as of November 30, 2006 (this
"AMENDMENT AGREEMENT"), 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 ("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 party hereto from time to time, XXXXXXX XXXXX CREDIT
PARTNERS L.P., as Administrative Agent (together with its permitted successors
in such capacity, "ADMINISTRATIVE AGENT"), as Collateral Agent and as Sole Book
Runner, Joint Lead Arranger and Syndication Agent, BARCLAYS CAPITAL, the
investment banking division of Barclays Bank PLC, as Joint Lead Arranger and
Documentation Agent and BANK OF AMERICA, as Issuing Bank and Credit-Linked
Deposit Bank (in such capacity, the "ISSUING BANK").
RECITALS:
WHEREAS, Company, Holdings, Lenders, Administrative Agent and Issuing
Bank have entered into that certain Senior Secured Super-Priority Debtor in
Possession Term Loan Credit and Guaranty Agreement, dated as of October 31, 2006
(as amended hereby and as further amended, modified or restated from time to
time, the "TERM LOAN DIP CREDIT AGREEMENT"). Capitalized terms used but not
defined in this Amendment Agreement shall have the meanings that are set forth
in the Term Loan DIP Credit Agreement;
WHEREAS, Company, Holdings, Lenders and Administrative Agent have
entered into that certain Term Loan Pledge and Security Agreement, dated as of
October 31, 2006 (as amended hereby and as further amended, modified or restated
from time to time, the "TERM LOAN SECURITY AGREEMENT");
WHEREAS, concurrently with the execution of this Amendment Agreement,
Company, Holdings, General Electric Capital Corporation and the various lenders
thereunder will have entered into that certain Senior Secured Super-Priority
Debtor in Possession Revolving Credit and Guaranty Agreement, dated as of the
date hereof (as the same may be amended modified or restated from time to time,
the "REVOLVING DIP CREDIT AGREEMENT"); and
WHEREAS, Company, the other Credit Parties, Lenders and Agents wish to
amend the Term Loan DIP Credit Agreement and the Term Loan Security Agreement 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 I. AMENDMENTS
A. Amendments to the Term Loan DIP Credit Agreement. The Term Loan DIP
Credit Agreement is hereby amended in its entirety to read as set forth in
Exhibit A attached hereto.
B. Amendments to the Term Loan Security Agreement. The Term Loan Security
Agreement is hereby amended in its entirety to read as set forth in Exhibit B
attached hereto.
AMENDMENT AGREEMENT
SECTION II. CONDITIONS PRECEDENT TO EFFECTIVENESS
The effectiveness of the amendments set forth at Section I hereof is
subject to the satisfaction, or waiver, of the following conditions on or before
the date hereof (the "AMENDMENT AGREEMENT EFFECTIVE DATE"):
(a) this Amendment, duly executed by each of the Credit Parties, the Agents
and the Lenders;
(b) all conditions set forth in Section 3.1 of the Revolving DIP Credit
Agreement shall have been satisfied or the fulfillment of any such conditions
shall have been waived with the consent of Administrative Agent and
Documentation Agent; and
(c) the representations and warranties set forth in Section III shall be
true and correct as of the Amendment Agreement Effective Date.
SECTION III. 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 Agreement and to
carry out the transactions contemplated hereby in all material respects, and
perform its obligations under the Term Loan DIP Credit Agreement, the Term Loan
Pledge and Security Agreement and the other Credit Documents, in each case in
all material respects.
B. AUTHORIZATION OF AGREEMENTS. The execution and delivery of this
Amendment Agreement and the performance of the Term Loan DIP Credit Agreement,
the Term Loan Pledge and Security Agreement and the other Credit Documents have
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 Agreement and the performance by each Credit Party of the Term
Loan DIP Credit Agreement, the Term Loan Pledge and Security Agreement and the
other Credit Documents, and the borrowings under the Term Loan DIP Credit
Agreement, do 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
Revolving Credit 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 Closing Date and disclosed in writing to Lenders
and such material approvals or material consents required to be obtained in the
ordinary course of business.
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D. GOVERNMENTAL CONSENTS. No action, consent or approval of or notice
to, registration or filing with or other action by any Governmental Authority is
required in connection with the execution and delivery by each Credit Party of
this Amendment Agreement and the performance by each Credit Party of the Term
Loan DIP Credit Agreement, the Term Loan Pledge and Security Agreement and the
other Credit Documents, except for (i) filings and recordings with respect to
the Collateral to be made, or otherwise delivered to Collateral Agent for filing
and/or recordation, as of the Closing Date (including, without limitation,
filings necessary to release existing Liens and/or to perfect the Liens granted
to Collateral Agent) and (ii) entry of the Orders.
E. BINDING OBLIGATION. This Amendment Agreement, the Term Loan DIP
Credit Agreement and the Term Loan Security Agreement have 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 TERM LOAN DIP
CREDIT AGREEMENT AND THE TERM LOAN SECURITY AGREEMENT. The representations and
warranties contained in Section 4 of the Term Loan DIP Credit Agreement and in
Section 4 of the Term Loan Security Agreement are and will be true, correct and
complete in all material respects on and as of the Amendment Agreement 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
Agreement that would constitute an Event of Default or a Default.
SECTION IV. 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 Term Loan DIP Credit Agreement and the
Collateral Documents subject to the terms and provisions of the Term Loan DIP
Credit Agreement and the Term Loan Security Agreement. 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 Term
Loan 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 Term Loan DIP Credit Agreement, the Term Loan
Security Agreement and this Amendment Agreement and consents to the amendment of
the Term Loan DIP Credit Agreement and the Term Loan Security Agreement effected
pursuant to this Amendment Agreement. 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
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now or hereafter existing under or in respect of the Term Loan DIP Credit
Agreement and the Term Loan Pledge and Security Agreement.
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 Agreement.
The Company and each Credit Support Party acknowledges and agrees that
nothing in the Term Loan DIP Credit Agreement, the Term Loan Pledge and Security
Agreement, this Amendment Agreement 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.
SECTION V. ACKNOWLEDGMENT OF ISSUING BANK
Issuing Bank hereby acknowledges and agrees that by its execution and
delivery of this Amendment Agreement, Issuing Bank shall become a party to the
Term Loan DIP Credit Agreement as Issuing Bank and Credit-Linked Deposit Bank,
shall be bound by the terms of the Credit Documents and shall perform in
accordance with their terms all of the obligations set forth therein.
SECTION VI. MISCELLANEOUS
A. BINDING EFFECT. This Amendment Agreement 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 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 TERM LOAN DIP CREDIT AGREEMENT. On and after the First
Amendment Effective Date, each reference in the Term Loan DIP Credit Agreement
to "this Agreement", "hereunder", "hereof", "herein" or words of like import
referring to the Term Loan DIP Credit Agreement, and each reference in the other
Credit Documents to the "Term Loan DIP Credit Agreement", "thereunder",
"thereof" or words of like import referring to the Term Loan DIP Credit
Agreement shall mean and be a reference to the Term Loan DIP Credit Agreement as
amended by this Amendment Agreement.
D. REFERENCE TO TERM LOAN SECURITY AGREEMENT. On and after the First
Amendment Effective Date, each reference in the Term Loan Security Agreement to
"this Agreement", "hereunder", "hereof", "herein" or words of like import
referring to the Term Loan Security Agreement, and each reference in the other
Credit Documents to the "Term Loan Security Agreement", "thereunder", "thereof"
or words of like import referring to the Term Loan Security Agreement shall mean
and be a reference to the Term Loan Security Agreement as amended by this
Amendment Agreement.
E. EFFECT ON CREDIT AGREEMENT. Except as specifically amended by this
Amendment Agreement, the Term Loan DIP Credit Agreement, the Term Loan Security
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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 Agreement 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 Term Loan DIP Credit Agreement, the Term Loan
Security 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 AGREEMENT 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.
H. COUNTERPARTS. This Amendment Agreement 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 Term Loan DIP Credit Agreement).
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment
Agreement 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:
------------------------------------
Name: Xxxxx X. Xxxxxxxxxx
Title:
---------------------------------
DURA SHIFTER L.L.C.
By: DURA OPERATING CORP.,
Its: SOLE MEMBER
By:
------------------------------------
Name: Xxxxx X. Xxxxxxxxxx
Title: Vice President, Chief Financial
Officer
DURA AIRCRAFT OPERATING COMPANY, LLC
By: DURA OPERATING CORP.,
Its: SOLE MEMBER
By:
------------------------------------
Name: Xxxxx X. Xxxxxxxxxx
Title: Vice President, Chief Financial
Officer
DURA BRAKE SYSYEMS, L.L.C.
By: DURA OPERATING CORP.,
Its: SOLE MEMBER
By:
------------------------------------
Name: Xxxxx X. Xxxxxxxxxx
Title: Vice President, Chief Financial
Officer
DURA CABLES NORTH LLC
By: XXXXXX AUTOMOTIVE, INC.,
Its: SOLE MEMBER
By:
------------------------------------
Name: Xxxxx X. Xxxxxxxxxx
Title: President
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DURA CABLES SOUTH LLC
By: XXXXXX AUTOMOTIVE, INC.,
Its: SOLE MEMBER
By:
------------------------------------
Name: Xxxxx X. Xxxxxxxxxx
Title: President
DURA FREMONT L.L.C.
DURA GLADWIN L.L.C.
DURA MANCELONA L.L.C.
DURA SERVICES L.L.C.
By:
------------------------------------
Name: Xxxxx X. Xxxxxxxxxx
Title: Manager
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CREATION WINDOWS, LLC
XXXXXXXX, LLC
By:
------------------------------------
Name: Xxxxx X. Xxxxxxxxxx
Title: President
AUTOMOTIVE AVIATION PARTNERS, LLC
By: DURA AIRCRAFT OPERATING COMPANY,
LLC,
Its: MANAGING MEMBER
By: DURA OPERATING CORP.,
Its: SOLE MEMBER
By:
------------------------------------
Name: Xxxxx X. Xxxxxxxxxx
Title: Vice President, Chief Financial
Officer
DURA G.P.
By: DURA OPERATING CORP.,
Its: MANAGING GENERAL PARTNER
By:
------------------------------------
Name: Xxxxx X. Xxxxxxxxxx
Title: Vice President, Chief Financial
Officer
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TRIDENT AUTOMOTIVE, L.P.
By: TRIDENT AUTOMOTIVE LIMITED,
Its: GENERAL PARTNER
By:
------------------------------------
Name: Xxxxx X. Xxxxxxxxxx
Title: President
TRIDENT AUTOMOTIVE, L.L.C.
By: TRIDENT AUTOMOTIVE CANADA, CO.,
Its: MANAGING MEMBER
By:
------------------------------------
Name: Xxxxx X. Xxxxxxxxxx
Title: President
PATENT LICENSING CLEARINGHOUSE L.L.C.
By: XXXX I MOLDED PLASTICS OF TENNESSEE,
INC.,
Its: SOLE MEMBER
By:
------------------------------------
Name: Xxxxx X. Xxxxxxxxxx
Title: President
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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:
---------------------------------
00
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:
---------------------------------
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XXXXXXX SACHS CREDIT PARTNERS L.P.,
as Administrative Agent, Collateral
Agent, Sole Bookrunner, Joint Lead
Arranger Syndication Agent and a Lender
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
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BARCLAYS CAPITAL
as Joint Lead Arranger and Documentation
Agent
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
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BANK OF AMERICA,
as Issuing Bank and Credit-Linked
Deposit Bank
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
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EXHIBIT A
CONFORMED COPY OF THE TERM LOAN DIP CREDIT AGREEMENT
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EXHIBIT B
CONFORMED COPY OF THE TERM LOAN SECURITY AGREEMENT
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