1
EXHIBIT 10.1
FIRST AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
This FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT dated as
of May 10, 2001 (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 FINANCIAL INSTITUTIONS LISTED ON THE SIGNATURE PAGES HEREOF
(the "Lenders"), BA AUSTRALIA LIMITED, as Australian Lender, BANK OF AMERICA
CANADA, as Canadian Lender, and BANK OF AMERICA, N.A. (formerly known as Bank of
America National Trust and Savings Association, "BofA"), 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 (the
"Agreement").
B. The parties wish to amend the Agreement as hereinafter set forth.
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 deleting the definitions of the terms "Canadian Dura
Commitment", "Canadian Trident Commitment", "Dura Canadian Borrower", "Dura
Canadian Loan", "Dura Canadian Loans Sublimit", "Total Trident Revolving
Outstandings", "Trident Canadian Borrower", "Trident Canadian Loan" and "Trident
Canadian Loans Sublimit" and so that the following definitions read in their
entirety as follows:
"Canadian Borrower means Dura Automotive Systems (Canada),
Ltd., an Ontario corporation and successor by amalgamation to Dura
Automotive Systems Cable Operations Canada, Inc. and Dura Automotive
Systems (Canada), Ltd."
"Canadian Commitment means the commitment of the Canadian
Lender to make Canadian Loans to the Canadian Borrower pursuant to
Section 5.1; it being understood that
2
the Canadian Commitment is a part of the combined Revolving
Commitments, rather than a separate, independent commitment."
"Canadian Loans Sublimit means U.S.$9,000,000, as such amount
may be reduced or increased from time to time in integral multiples of
U.S.$1,000,000 effective four Business Days after written notice of
such reduction or increase is given by Dura to the Agent and the
Canadian Lender, provided that after giving effect to such reduction or
increase, (x) the Canadian Loans Sublimit shall not exceed
U.S.$9,000,000 and (y) the Canadian Loans Sublimit shall not be less
than the then aggregate principal Dollar Equivalent amount of all
outstanding Canadian Loans."
"Total Revolving Outstandings means the sum of the aggregate
principal Dollar Equivalent amount of all outstanding Revolving Group
Loans plus the Australian Loans Sublimit plus the Canadian Loans
Sublimit plus the aggregate principal Dollar Equivalent amount of all
Swing Line Loans plus (without duplication) the Effective Amount of all
L/C Obligations of the Borrowers."
""Trident Obligations" means all Obligations."
2.2 The Agreement is amended as of the Amendment Effective
Date (i) by replacing the terms "Canadian Dura Commitment" and "Canadian Trident
Commitment" wherever either term occurs with the term "Canadian Commitment",
(ii) by replacing each of the terms "Dura Canadian Borrower", "Trident Canadian
Borrower", "each Canadian Borrower", "a Canadian Borrower" and "Canadian
Borrowers" wherever any such term occurs with the term "Canadian Borrower",
(iii) by replacing the terms "Dura Canadian Loan" and "Trident Canadian Loan"
wherever they occur with the term "Canadian Loan", and (iv) by replacing the
terms "Dura Canadian Loans Sublimit" and "Trident Canadian Loans Sublimit"
wherever either term occurs with the term "Canadian Loans Sublimit".
2.3 Subsection 2.1(d) of the Agreement is amended as of the
Amendment Effective Date to read in its entirety as follows:
"(d) Revolving Group Loans. Each applicable Lender severally
agrees, on the terms and conditions set forth herein, to make loans to
the Borrowers (other than the U.K. Borrowers, the Dura Australian
Borrower and the Canadian Borrower) in U.S. Dollars, Pounds Sterling,
French francs, Deutschemarks and Euros (each such loan, a "Revolving
Group Loan") from time to time on any Business Day during the period
from the initial Closing Date to the Revolving Commitment Termination
Date, in an aggregate Dollar Equivalent amount not to exceed at any
time outstanding the amount set forth opposite such Lender's name under
the heading "Revolving Commitment" on Schedule 2.1 (such amount, as
reduced pursuant to Section 2.7 or changed as a result of one or more
assignments under Section 7.8 or 14.8, such Lender's "Revolving
Commitment"); provided that
-2-
3
(i) after giving effect to any Borrowing of Revolving
Group Loans, the Total Revolving Outstandings shall not exceed
the combined Revolving Commitments of all Lenders (less the
Xxxxxx Reserved Amount);
(ii) the aggregate principal Dollar Equivalent amount
of the Revolving Group Loans of any Lender plus such Lender's
Pro Rata Share of the Australian Loans Sublimit and the
Canadian Loans Sublimit plus such Lender's Pro Rata Share of
the aggregate principal amount of all outstanding Swing Line
Loans plus (without duplication) the participation of such
Lender in the Effective Amount of all L/C Obligations shall
not at any time exceed such Lender's Revolving Commitment;
(iii) the aggregate Dollar Equivalent amount of all
Revolving Group Loans made in Pounds Sterling, French francs,
Deutschemarks, Euros and any other Offshore Currencies shall
not exceed U.S.$150,000,000; and
(iv) the Total Borrower Revolving Outstandings of any
Borrower shall not exceed the amount set forth for such
Borrower on Schedule 2.1(d).
Within the limits of each Lender's Revolving Commitment, and subject to
the other terms and conditions hereof, the Borrowers may borrow under
this subsection 2.1(d), prepay under Section 2.8 and reborrow under
this subsection 2.1(d)."
2.4 Subsection 2.5(a) of the Agreement (determining Dollar
Equivalent amount) is amended as of the Amendment Effective Date to read in its
entirety as follows:
"(a) The Agent will determine the Dollar Equivalent
amount with respect to (i) any Borrowing comprised of Offshore Currency
Loans as of the requested Borrowing Date, (ii) any Issuance of a Letter
of Credit in an Offshore Currency as of the requested Issuance Date,
(iii) any drawing under a Letter of Credit in an Offshore Currency as
of the related Honor Date, (iv) all outstanding Offshore Currency Loans
and L/C Obligations as of the last Business Day of any month (if the
Agent has not previously made a determination of the Dollar Equivalent
amount of all outstanding Offshore Currency Loans and L/C Obligations
during such month), and (v) any outstanding Offshore Currency Loan and
L/C Obligations as of any redenomination date pursuant to this Section
2.5 or Section 7.2 or 7.5 and any date on which the Revolving
Commitments are reduced pursuant to Section 2.7."
2.5 Section 2.10 of the Agreement (Tranche B Term Loan
pricing) is amended as of July 1, 2001 so that the third sentence thereof reads
in its entirety as follows:
"Each Tranche B Term Loan shall bear interest on the outstanding
principal amount thereof from the applicable Borrowing Date at a rate
per annum equal to the Offshore Rate plus
-3-
4
3.00% or the U.S. Base Rate plus 1.50%, as the case may be (and subject
to the Borrowers' right to convert to the other Type of Loan under
Section 2.4)."
2.6 Section 3.1 of the Agreement is amended as of the
Amendment Effective Date to read in its entirety as follows:
"3.1 Swing Line Commitment. Subject to the terms and
conditions of this Agreement, the Swing Line Lender agrees to make
loans to the Borrowers (other than the Dura Australian Borrower and the
Canadian Borrower) on a revolving basis (each such loan, a "Swing Line
Loan") from time to time on any Business Day during the period from the
initial Closing Date to the Revolving Commitment Termination Date in an
aggregate principal Dollar Equivalent amount at any one time
outstanding not to exceed U.S.$50,000,000; provided, however, that:
(a) the Total Revolving Outstandings shall not at any
time exceed the combined Revolving Commitments (less the
Xxxxxx Reserved Amount); and
(b) the Total Borrower Revolving Outstandings of any
Borrower shall not exceed the amount set forth for such
Borrower on Schedule 2.1(d).
All Swing Line Loans shall be made and maintained as Floating Rate
Loans. The Agent will determine the Dollar Equivalent amount with
respect to any Swing Line Loan when made and as of the last Business
Day of each month (unless the Agent has previously determined such
Dollar Equivalent amount during such month)."
2.7 Subsection 4.1(b) of the Agreement (Dura Australian
Borrowings) is amended as of the Amendment Effective Date to read in its
entirety as follows:
"(b) The Agent will determine the Dollar Equivalent
amount with respect to any (i) Australian Loan as of the requested
Borrowing Date, (ii) outstanding Australian Loans as of the last
Business Day of each month (unless the Agent has previously determined
such Dollar Equivalent amount during such month) and (iii) outstanding
Australian Loans on any date on which the Australian Loans Sublimit is
reduced in accordance with the definition thereof."
2.8 Section 5.1 of the Agreement (Canadian Loans) is amended
as of the Amendment Effective Date to read in its entirety as follows:
"5.1 Canadian Borrowings.
(a) The Canadian Lender agrees, on the terms and
conditions set forth herein, to make loans to the Canadian Borrower
(each such loan, a "Canadian Loan") from time to time on any Business
Day during the period from the initial Closing Date to the
-4-
5
Revolving Commitment Termination Date, in an aggregate principal Dollar
Equivalent amount at any one time outstanding not to exceed the
Canadian Loans Sublimit for all Canadian Loans, notwithstanding the
fact that the Canadian Lender's Canadian Loans, when aggregated with
the other outstanding Revolving Loans of its primary Lender and the
Australian Loans of the Australian Lender and (without duplication) the
participation of its primary Lender in the Effective Amount of all L/C
Obligations, may exceed its related primary Lender's Revolving
Commitment; provided that at no time shall the Total Revolving
Outstandings exceed the combined Revolving Commitments (less the Xxxxxx
Reserved Amount). Subject to the other terms and conditions hereof, the
Canadian Borrower may borrow under this Section 5.1, prepay pursuant to
Section 5.4 and reborrow pursuant to this Section 5.1 from time to
time.
(b) The Agent will determine the Dollar Equivalent
amount with respect to any (i) Canadian Loan as of the requested
Borrowing Date, (ii) outstanding Canadian Loans as of the last Business
Day of each month (unless the Agent has previously determined such
Dollar Equivalent amount during such month), and (iii) outstanding
Canadian Loans on any date on which the Canadian Loans Sublimit is
reduced in accordance with the definition thereof."
2.9 Subsection 6.1(a) of the Agreement (Letters of Credit) is
amended as of the Amendment Effective Date to read in its entirety as follows:
"(a) On the terms and conditions set forth herein,
(i) the Issuing Lender agrees, (A) from time to time on any Business
Day during the period from the initial Closing Date to the Revolving
Commitment Termination Date to issue Letters of Credit for the account
of any Borrower (or, if a Letter of Credit is for the account of a
Subsidiary that is not a Borrower, jointly for the account of a
Borrower and such Subsidiary), and to amend or renew Letters of Credit
previously issued by it, in accordance with subsections 6.2(c) and
6.2(d), and (B) to honor properly drawn drafts under the Letters of
Credit; and (ii) the Revolving Lenders severally agree to participate
in Letters of Credit Issued for the account of any Borrower (including
any Letter of Credit issued jointly for the account of a Borrower and
any Subsidiary); provided that the Issuing Lender shall not be
obligated to Issue, and no Revolving Lender shall be obligated to
participate in, any Letter of Credit if as of the date of Issuance of
such Letter of Credit (the "Issuance Date"):
(1) the Total Revolving Outstandings exceed the
combined Revolving Commitments (less the Xxxxxx Reserved
Amount),
(2) the participation of such Revolving Lender in the
Effective Amount of all L/C Obligations of the Borrowers plus
(without duplication) the outstanding principal Dollar
Equivalent amount of the Revolving Group Loans of such
Revolving Lender plus such Revolving Lender's Pro Rata Share
of the Australian Loans Sublimit and the Canadian Loans
Sublimit plus such Revolving Lender's Pro
-5-
6
Rata Share of all Swing Line Loans exceeds such Revolving
Lender's Revolving Commitment,
(3) the Effective Amount of all L/C Obligations of
the Borrowers exceeds the L/C Commitment,
(4) the Total Borrower Revolving Outstandings of the
related Borrower exceed the limit for such Borrower set forth
in Schedule 2.1(d).
Within the foregoing limits, and subject to the other terms and
conditions hereof, the Borrowers' ability to obtain Letters of Credit
shall be fully revolving, and, accordingly, the Borrowers may, during
the foregoing period, obtain Letters of Credit to replace Letters of
Credit which have expired or which have been drawn upon and reimbursed.
The Agent will determine the Dollar Equivalent amount of the L/C
Obligations with respect to any Letter of Credit when issued, when
drawn upon and unless the Agent has previously determined such Dollar
Equivalent amount during such month, as of the last Business Day of
each month."
2.10 Section 9.16 is amended as of the Amendment Effective
Date by adding thereto the following sentence: "As of May 10, 2001, DASI has no
Subsidiaries other than those specifically disclosed in part(g) of Schedule
9.16."
2.11 Section 10.1 of the Agreement is amended as of the
Amendment Effective Date by deleting subsections (c) and (d) thereof.
2.12 Subsection 10.14(a) of the Agreement is amended as of the
Amendment Effective Date by deleting the first proviso therein ("provided that
the Guaranties and Collateral of Trident and any Trident Subsidiary shall
support and secure only Trident Obligations;").
2.13 Subsections 11.1(i) and (j) of the Agreement (purchase
money lien/capital lease basket) are amended as of the Amendment Effective Date
by substituting the amount "$60,000,000" for the amount "$40,000,000" therein.
2.14 Sections 11.10, 11.12 and 11.13 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) 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
-6-
7
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
--------------------- -----
Any fiscal quarter ending
prior to June 30, 2001 1.75:1
Fiscal quarter ending
on June 30, 2001 1.65:1
Fiscal quarters ending
after June 30, 2001 and
prior to September 30, 2002 1.50:1
Fiscal quarter ending
on September 30, 2002 1.55:1
Fiscal quarter ending
on December 31, 2002 1.65:1
Fiscal quarters ending on
March 31, 2003, June 30,
2003 and September 30,
2003 1.75:1
Any fiscal quarter ending
thereafter 2.00:1"
"11.12 Senior Leverage Ratio. DASI shall not permit the Senior
Leverage Ratio as of the last day of any fiscal quarter to exceed (i)
4.00:1 on Xxxxx 00, 0000, (xx) 3.75:1 on June 30, 2001, (iii) 3.50:1 on
September 30, 2001, (iv) 3.25:1 after September 30, 2001 and prior to
September 30, 2003, and (v) 3.00:1 on and after September 30, 2003."
"11.13 Total Debt to EBITDA Ratio. DASI shall not permit the
Total Debt to EBITDA Ratio as of the last day of any fiscal quarter to
exceed (i) 4.75:1 on or prior to June 30, 2002, (ii) 4.65:1 on
September 30, 2002, (iii) 4.50:1 on December 31, 2002, (iv) 4.25:1 on
March 30, 2003 and June 30, 2003, or (v) 4.00:1 thereafter."
2.15 Subsection 13.11(b) of the Agreement is amended as of the
Amendment Effective Date to add the phrase "or, as the case may be, subordinate"
in the second line thereof so that it reads in its entirety as follows:
-7-
8
"(b) The Lenders irrevocably authorize the Agent, at
its option and in its discretion, to release or, as the case may be,
subordinate any Lien granted to or held by the Agent upon any
Collateral (i) upon termination of the Commitments and payment in full
of all Loans and all other Obligations payable under this Agreement and
under any other Loan Document; (ii) constituting property sold or to be
sold or disposed of as part of or in connection with any disposition
permitted hereunder; (iii) constituting property in which a Loan Party
owned no interest at the time the Lien was granted or at any time
thereafter; (iv) constituting property leased to a Loan Party under a
lease which has expired or been terminated in a transaction permitted
under this Agreement or is about to expire and which has not been, and
is not intended by such Loan Party to be, renewed or extended; (v)
consisting of an instrument evidencing Indebtedness or other debt
instrument, if the indebtedness evidenced thereby has been paid in
full; (vi) constituting property subject to a capital lease or purchase
money security interest permitted under subsection 11.1(i) or (j); or
(vii) if approved, authorized or ratified in writing by the Required
Lenders or all the Lenders, as the case may be, as provided in Section
14.1(e). Upon request by the Agent at any time, the Lenders will
confirm in writing the Agent's authority to release particular types or
items of Collateral pursuant to this Section 13.11(b)."
2.16 Section 14.5 of the Agreement is amended as of the
Amendment Effective Date to read in its entirety as follows:
"14.5 Borrower Indemnification. Whether or not the
transactions contemplated hereby are consummated, DASI and the
Borrowers shall indemnify, defend and hold the Agent-Related Persons
and each Lender and each of their respective officers, directors,
trustees, employees, counsel, agents and attorneys-in-fact (each, an
"Indemnified Person") harmless from and against any and all
liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, charges, expenses and disbursements (including
Attorney Costs but excluding taxes on the overall net income (including
franchise taxes based on net income) of such Indemnified Person) of any
kind or nature whatsoever which may at any time (including at any time
following repayment of the Loans, the termination of the Letters of
Credit and the termination, resignation or replacement of the Agent or
replacement of any Lender) be imposed on, incurred by or asserted
against any such Person in any way relating to or arising out of this
Agreement or any document contemplated by or referred to herein, or the
transactions contemplated hereby or thereby, or any action taken or
omitted by any such Person under or in connection with any of the
foregoing, including with respect to any pending or threatened
investigation, litigation or proceeding (including any Insolvency
Proceeding or appellate proceeding) related to or arising out of this
Agreement or the Loans or Letters of Credit or the use of the proceeds
thereof, or related to any Offshore Currency transactions entered into
in connection herewith, whether or not any Indemnified Person is a
party thereto (all the foregoing, collectively, the "Indemnified
Liabilities"); provided that no Borrower shall have any obligation
hereunder to any Indemnified Person with respect to Indemnified
Liabilities to the extent resulting from the
-8-
9
gross negligence or willful misconduct of such Indemnified Person. The
agreements in this Section shall survive payment of all other
Obligations."
2.17 Subsection 14.8(a) of the Agreement is amended as of the
Amendment Effective Date by deleting the phrase "in the case of an assignment to
an Affiliate of such Lender" so that it reads in its entirety as follows:
"(a) Any Lender may, with the written consent of DASI
and the Agent, which consents of DASI and the Agent shall not be
unreasonably withheld or delayed, at any time assign and delegate to
one or more Eligible Assignees (provided that no written consent of
DASI shall be required if an Event of Default then exists and is
continuing, and no written consent of DASI or the Agent shall be
required in connection with any assignment and delegation by a Lender
to an Eligible Assignee that is an Affiliate of such Lender, to a
Related Fund of any Lender or to another Lender (so long as such
assignment will not result in any increased costs to the Borrowers))
(each an "Assignee") all or any ratable part of all of the Loans, the
Commitments, the L/C Obligations and the other rights and obligations
of such Lender hereunder, in a minimum Dollar Equivalent amount of
U.S.$5,000,000 (or such lesser amount as may be agreed to by DASI and
the Agent in their sole discretion), or, if less, the entire amount of
all Loans, the Commitments, L/C Obligations and other rights and
obligations of such Lender hereunder; provided, however, that (i) the
Borrowers and the Agent may continue to deal solely and directly with
such Lender in connection with the interest so assigned to an Assignee
until (x) written notice of such assignment, together with payment
instructions, addresses and related information with respect to the
Assignee, shall have been given to the Borrowers and the Agent by such
Lender and the Assignee; (y) such Lender and its Assignee shall have
delivered to the Borrowers and the Agent an Assignment and Acceptance
in the form of Exhibit H ("Assignment and Acceptance") together with
any Note or Notes subject to such assignment and (z) the assignor
Lender or Assignee shall have paid to the Agent a processing fee in the
amount of U.S.$3,500; and (ii) no Lender which is (or is the primary
Lender with respect to) an Australian Lender may assign all of its
rights and obligations hereunder unless arrangements satisfactory to
the Borrowers and the Agent have been made for one or more Lenders to
act (or to cause their respective Affiliates to act) as Australian
Lender hereunder in the full amount of the Australian Dura Commitment
and (iii) no Lender which is (or is the primary Lender with respect to)
a Canadian Lender may assign all of its rights and obligations
hereunder unless arrangements satisfactory to the Borrowers and the
Agent have been made for one or more Lenders to act (or to cause their
respective Affiliates to act) as Canadian Lender hereunder in the full
amount of the Canadian Commitment."
2.18 Schedule 1.1 (Pricing Schedule) to the Agreement is
amended effective as of July 1, 2001 to read in its entirety in the form
attached hereto as Schedule 1.1. Schedules 9.5 and 9.12 are amended as of the
Amendment Effective Date by adding thereto the attached
-9-
10
supplement thereto. Schedule 9.16 is amended effective as of the Amendment
Effective Date by adding thereto in its entirety the attached Schedule 9.16 part
(g).
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 such Borrower and have been duly
authorized by all necessary corporate action on the part of DASI and
such 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.
(iii) No Default. No Event of Default or Unmatured Event of
Default has occurred and is continuing that will not be cured or waived
by this Amendment taking effect.
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 upon the date
on which all of the following occur (the "Amendment Effective Date"): (i)
receipt by the Agent on or before May 11, 2001 of counterparts of this Amendment
(whether by facsimile or otherwise) executed by the Borrowers, the Agent and the
Required Lenders, (ii) payment on or before May 11, 2001 by the Borrowers in
immediately available funds of an amendment fee to the Agent for the account of
each Lender executing this Amendment on or prior to May 11, 2001, in an amount
equal to 0.15% of the amount of such Lender's Commitment (whether used or
unused), and (iii) receipt by the Agent on or before May 11, 2001 of the
following, each in form and substance satisfactory to the Agent: (A)
certificates of DASI and each Borrower as to authorizing resolutions with
respect to this Amendment and the incumbency and signatures of officers, and (B)
an opinion of U.S. counsel to DASI and the Borrowers as to this Amendment.
-10-
11
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.
[SIGNATURE PAGES BEGIN ON NEXT PAGE]
-11-
12
IN WITNESS WHEREOF, the parties have executed this Amendment as of the
date first above written.
DURA AUTOMOTIVE SYSTEMS, INC.
By: /s/ Xxxxx Xxxx
--------------------------------------------
Title: Corporate Treasurer
-----------------------------------------
DURA OPERATING CORP.
By: /s/ Xxxxx Xxxx
--------------------------------------------
Title: Corporate Treasurer
-----------------------------------------
DURA HOLDING GERMANY GMBH (successor
by merger to Dura Automotive Systems (Europe)
GmbH)
By: /s/ Xxxxx Xxxx
--------------------------------------------
Title: Corporate Treasurer
-----------------------------------------
SIGNED, SEALED and )
DELIVERED by )
Xxxxx Xxxx
------------, as )
Attorney for )
DURA ASIA-PACIFIC )
PTY LIMITED )
ACN 004 884 539 )
pursuant to a Power )
of Attorney dated )
May 7, 2001
--------------- )
in the presence of: )
/s/ Xxxxxxxx Xxxxxxxxx
-----------------------------------
Signature of Witness
Xxxxxxxx Xxxxxxxxx
-----------------------------------
Name of Witness
X-0
00
XXXX AUTOMOTIVE SYSTEMS (CANADA), LTD.
By: /s/ Xxxxx Xxxx
---------------------------------------------
Title: Corporate Treasurer
------------------------------------------
TRIDENT AUTOMOTIVE LIMITED (formerly
known as Trident Automotive plc)
By: /s/ Xxxxx X. Xxxxx
---------------------------------------------
Title: Vice President and Chief Financial Officer
------------------------------------------
DURA AUTOMOTIVE SYSTEMS LIMITED
By: /s/ Xxxxx X. Xxxxx
---------------------------------------------
Title: Vice President and Chief Financial Officer
------------------------------------------
SPICEBRIGHT LIMITED
By: /s/ Xxxxx X. Xxxxx
---------------------------------------------
Title: Vice President and Chief Financial Officer
------------------------------------------
DURA AUTOMOTIVE SYSTEMS CABLE
OPERATIONS INC.
By: /s/ Xxxxx X. Xxxxx
---------------------------------------------
Title: Vice President and Chief Financial Officer
------------------------------------------
MOBLAN INVESTMENTS B.V.
By: /s/ Bartholomeus Xxxxx Xxxxxxxxxxx
---------------------------------------------
Title: Managing Director
------------------------------------------
S-2
14
DURA AUTOMOTIVE ACQUISITION LIMITED
By: /s/ Xxxxx X. Xxxxx
----------------------------------------------
Title: Vice President and Chief Financial Officer
---------------------------------------
DURA AUTOMOTIVE HOLDING GMBH & CO
KG (formerly known as ADWEST XXXXXXXXX
GRUPPE GMBH & CO KG)
By: /s/ Xxxxx Xxxx
----------------------------------------------
Title: Corporate Treasurer
-------------------------------------------
ADWEST FRANCE S.A.
By: /s/ Xxxxxxxx Xxxxxxxxx
----------------------------------------------
Title:
-------------------------------------------
BANK OF AMERICA, N.A., as Agent
By: /s/ Bank of America, N.A.
----------------------------------------------
Title:
-------------------------------------------
LENDERS
BANK OF AMERICA, N.A., as, Swing Line Lender,
Issuing Lender and a Lender
By: /s/ Bank of America, N.A.
----------------------------------------------
Title:
-------------------------------------------
S-3
15
ABN AMRO BANK NV
By: /s/ ABN AMRO Bank NV
-----------------------------------------
Title:
--------------------------------------
By:
-----------------------------------------
Title:
--------------------------------------
AIMCO CDO SERIES 2000-A
By: /s/ AIMCO CDO Series 2000-A
-----------------------------------------
Title:
--------------------------------------
ALLSTATE LIFE INSURANCE CO.
By: /s/ Allstate Life Insurance Co.
-----------------------------------------
Title:
--------------------------------------
AMMC CDO I LIMITED
By: /s/ AMMC CDO I Limited
-----------------------------------------
Title:
--------------------------------------
AMMC CDO II LTD
By: /s/ AMMC CDO II LTD
-----------------------------------------
Title:
--------------------------------------
APEX (IDM) CDO 1 LTD
By: /s/ (IDM) CDO I LTD
-----------------------------------------
S-4
16
Title:
---------------------------------------
ARES IV CLO LTD
By: /s/ ARES IV CLO LTD
------------------------------------------
Title:
---------------------------------------
BALANCED HIGH-YIELD FUND II, LTD.
By: ING Capital Advisers LLC,
as Asset Manager
By: /s/ Balanced High-Yield Fund II, LTD.
------------------------------------------
Title:
---------------------------------------
THE BANK OF NEW YORK
By: /s/ The Bank of New York
------------------------------------------
Title:
---------------------------------------
BANK OF NOVA SCOTIA
By: /s/ Bank of Nova Scotia
------------------------------------------
Title:
---------------------------------------
BANK OF TOKYO-MITSUBISHI TRUST
COMPANY
By: /s/ Bank of Tokyo-Mitsubishi Trust Company
------------------------------------------
Title:
---------------------------------------
X-0
00
XXXX XXXXXX XXXX XXXXXX S.A.
By: /s/ Bank Polska Kasa Opeiki S.A.
---------------------------------------
Title:
------------------------------------
BARCLAYS BANK PLC
By: /s/ Barclays Bank PLC
---------------------------------------
Title:
------------------------------------
BAVARIA TRR CORPORATION
By: /s/ Bavaria TRR Corporation
---------------------------------------
Title:
------------------------------------
BAYERISCHE HYPO-UND VEREINSBANK AG,
NEW YORK BRANCH
By: /s/ Bayerische Hypo-Und Vereinsbank
---------------------------------------
AG, New York Branch
---------------------------------------
Title:
------------------------------------
By:
---------------------------------------
Title:
------------------------------------
BHF (USA) CAPITAL CORP.
By: /s/ BHF (USA) Capital Corp.
---------------------------------------
Title:
------------------------------------
BNP XXXXXXX
X-0
18
By: /s/ BNP Paribas
---------------------------------------
Title:
------------------------------------
BW CAPITAL MARKETS INC.
By: /s/ BW Capital Markets Inc.
---------------------------------------
Title:
------------------------------------
CENTURION CDO II LTD
By: /s/ Centurion CDO II LTD
---------------------------------------
Title:
------------------------------------
THE CHASE MANHATTAN BANK
By: /s/ The Chase Manhattan Bank
---------------------------------------
Title:
------------------------------------
CIT GROUP/EQUIPMENT FINANCE
By: /s/ CIT Group/Equipment Finance
---------------------------------------
Title:
------------------------------------
CITADEL EQUITY FUND LTD.
By:
---------------------------------------
Title:
------------------------------------
CITIZENS BANK
By: /s/ Citizens Bank
---------------------------------------
S-7
19
Title:
--------------------------------------------
COMERICA BANK
By: /s/ Comerica Bank
-----------------------------------------------
Title:
--------------------------------------------
CREDIT AGRICOLE INDOSUEZ
By:
-----------------------------------------------
Title:
--------------------------------------------
CYPRESSTREE SENIOR FLOATING
By:
-----------------------------------------------
Title:
--------------------------------------------
DEVELOPMENT BANK OF SINGAPORE LIMITED
By: /s/ Development Bank of Singapore Limited
-----------------------------------------------
Title:
--------------------------------------------
DRESDNER BANK AG NEW YORK AND
GRAND CAYMAN BRANCHES
By: /s/ Dresdner Bank AG New York and Grand
Cayman Branches
-----------------------------------------------
Title:
--------------------------------------------
XXXXX XXXXX CDO III LTD
S-8
20
By: /s/ Xxxxx Xxxxx CDO III LTD
------------------------------------
Title:
---------------------------------
ELC (CAYMAN) LTD 2000-1
By: /s/ ELC (Cayman) LTD 2000-1
------------------------------------
Title:
---------------------------------
ELC (CAYMAN) LTD CDO SERIES
By: /s/ ELC (Cayman) LTD CDO Series
------------------------------------
Title:
---------------------------------
ELC CAYMAN LTD 1999-III
By: /s/ ELC Cayman LTD 1999-III
------------------------------------
Title:
---------------------------------
ELT - DURA AUTOMOTIVE SYSTEMS
By: /s/ ELT - Dura Automotive Systems
------------------------------------
Title:
---------------------------------
FIRST UNION NATIONAL BANK
By: /s/ First Union National Bank
------------------------------------
Title:
---------------------------------
FIVE FINANCE CORPORATION
S-9
21
By: /s/ Five Finance Corporation
--------------------------------------
Title:
-----------------------------------
FLEET NATIONAL BANK
By: /s/ Fleet National Bank
--------------------------------------
Title:
-----------------------------------
FREMONT INVESTMENTS & LOAN
By: /s/ Fremont Investments & Loan
--------------------------------------
Title:
-----------------------------------
GREAT POINT CLO 1999-1 LDT
By: /s/ Great Point CLO 1999-1 LDT
--------------------------------------
Title:
-----------------------------------
XXXXXXXX BANK NA
By: /s/ Xxxxxxxx Bank NA
--------------------------------------
Title:
-----------------------------------
IKB DEUTSCHE INDUSTRIEBANK AG
By: /s/ IKB Deutsche Industriebank AG
--------------------------------------
Title:
-----------------------------------
INDOSUEZ CAPITAL FUNDING IV L.P.
By: /s/ Indosuez Capital Funding IV L.P.
--------------------------------------
S-10
22
Title:
-----------------------------------
KBC BANK NV
By: /s/ KBC Bank NV
--------------------------------------
Title:
-----------------------------------
XXXXXX FLOATING RATE FUND
By: /s/ Xxxxxx Floating Rate Fund
--------------------------------------
Title:
-----------------------------------
KEYBANK NA
By: /s/ Keybank NA
--------------------------------------
Title:
-----------------------------------
KZH CNC LLC
By: /s/ KZH CNC LLC
--------------------------------------
Title:
-----------------------------------
KZH CYPRESSTREE 1 LLC
By: /s/ KZH Cypersstree 1 LLC
--------------------------------------
Title:
-----------------------------------
KZH RIVERSIDE LLC
By: /s/ KZH Riverside LLC
--------------------------------------
S-11
23
Title:
-----------------------------------
KZH SOLEIL 2 LLC
By: /s/ KZH Soleil 2 LLC
--------------------------------------
Title:
-----------------------------------
KZH SOLEIL LLC
By: /s/ KZH Soleil LLC
--------------------------------------
Title:
-----------------------------------
KZH WATERSIDE LLC
By: /s/ KZH Waterside LLC
--------------------------------------
Title:
-----------------------------------
LIBERTY-XXXXX XXX ADVISOR FLOATING
RATE ADVANTAGE FUND
By: /s/ Liberty-Xxxxx Xxx Advisor Floating
--------------------------------------
Rate Advantage Fund
--------------------------------------
Title:
-----------------------------------
MICHIGAN NATIONAL BANK
By: /s/ Michigan National Bank
--------------------------------------
Title:
-----------------------------------
MUIRFIELD TRADING LLC
By: /s/ Muirfield Trading LLC
--------------------------------------
S-12
24
Title:
--------------------------------------
NATIONAL CITY BANK
By: /s/ National City Bank
-----------------------------------------
Title:
--------------------------------------
NBD BANK NA
By: /s/ NBD Bank NA
-----------------------------------------
Title:
--------------------------------------
NORTH AMERICAN SENIOR FLOATING
By:
-----------------------------------------
Title:
--------------------------------------
OLYMPIC FUNDING TRUST SERIES 1999-1
By: /s/ Olympic Funding Trust Series 1999-1
-----------------------------------------
Title:
--------------------------------------
PINEHURST TRADING INC.
By: /s/ Pinehurst Trading Inc.
-----------------------------------------
Title:
--------------------------------------
QCC-GALAXY CLO 1999-1 LLC
By:
-----------------------------------------
Title:
--------------------------------------
X-00
00
XXXXXXX XXXX XXXXX PARTNERS
By: /s/ Sankaty High Yield Partners
--------------------------------------
Title:
-----------------------------------
SENIOR DEBT PORTFOLIO
By: /s/ Senior Debt Portfolio
--------------------------------------
Title:
-----------------------------------
SEQUIS - CUMERLAND I LDT
By: /s/ Sequis - Cumerland I LDT
--------------------------------------
Title:
-----------------------------------
SIERRA CLO I LTD
By: /s/ Sierra CLO I LTD
--------------------------------------
Title:
-----------------------------------
SRF 2000 LLC
By: /s/ SRF 2000 LLC
--------------------------------------
Title:
-----------------------------------
SRF TRADING INC.
By: /s/ SRF Trading Inc.
--------------------------------------
Title:
-----------------------------------
X-00
00
XXXXX XXX & XXXXXXX CLO I LTD
By: /s/ Xxxxx Xxx & Farnham CLO I LTD
--------------------------------------
Title:
-----------------------------------
XXXXX XXX FLOATING RATE
By: /s/ Xxxxx Xxx Floating Rate
--------------------------------------
Title:
-----------------------------------
SUMITOMO TRUST & BANKING
By: /s/ Sumitomo Trust & Banking
--------------------------------------
Title:
-----------------------------------
XXXXXXX XXXXXXXX (XXXXX)
By: /s/ Toronto Dominion (Texas)
--------------------------------------
Title:
-----------------------------------
TRAVELERS CORPORATE LOAN
By: /s/ Travelers Corporate Loan
--------------------------------------
Title:
-----------------------------------
TRAVELERS INSURANCE CO.
By: /s/ Travelers Insurance Co.
--------------------------------------
Title:
-----------------------------------
S-15
27
XXXXX CLO LTD 2000-1
By: /s/ Xxxxx CLO LTD 2000-1
--------------------------------------
Title:
-----------------------------------
US BANK NATIONAL ASSOCIATION
By: /s/ US Bank National Association
--------------------------------------
Title:
-----------------------------------
XXX XXXXXX AMERICAN CAPITAL
By: /s/ Xxx Xxxxxx American Capital
--------------------------------------
Title:
-----------------------------------
XXXXXXX BANK
By: /s/ Xxxxxxx Bank
--------------------------------------
Title:
-----------------------------------
S-16
28
BA AUSTRALIA LIMITED, as Australian Lender
By:
--------------------------------------
Title:
-----------------------------------
BANK OF AMERICA CANADA, as Canadian
Lender
By:
--------------------------------------
Title:
-----------------------------------
S-17
29
SCHEDULE 1.1
PRICING SCHEDULE
(effective as of July 1, 2001)
The Applicable Margin, the Commitment Fee
Rate, the L/C Fee Rate, the U.S. Base Rate Margin and the Other Floating Rate
Margin shall be determined based on the applicable Senior Leverage Ratio as set
forth below.
L/C Fee Rate - U.S. Other Floating
Senior Leverage Applicable Commitment Letters of Base Rate Rate
Ratio Margin Fee Rate Credit Margin Margin
----- ------ --- ---- ------ ------ ------
Less than 2.25 to 1 2.000% 0.375% 2.000% 0.500% 2.500%
Equal to or greater 2.250% 0.500% 2.250% 0.750% 2.750%
than 2.25 to 1 but
less than 2.75 to 1
Equal to or greater 2.500% 0.500% 2.500% 1.000% 3.000%
than 2.75 to 1 but
less than 3.25 to 1
Equal to or greater 2.750% 0.500% 2.750% 1.250% 3.250%
than 3.25 to 1
As of July 1, 2001, the Applicable Margin, the Commitment Fee Rate,
the L/C Fee Rate, the U.S. Base Rate Margin and the Other Floating Rate Margin
initially shall be determined based on the Senior Leverage Ratio as of March 31,
2001. Each of the foregoing shall be adjusted, to the extent applicable, 45 days
(or, in the case of the last Fiscal Quarter of any Fiscal Year, 90 days) after
the end of each Fiscal Quarter beginning with the Fiscal Quarter ending June 30,
2001 based on the Senior Leverage Ratio as of the last day of such Fiscal
Quarter; provided that if DASI fails to deliver the financial statements
required by Section 10.1 by the due date therefor, the Applicable Margin, the
Commitment Fee Rate, the L/C Fee Rate, the U.S. Base Rate Margin and the Other
Floating Rate Margin that would apply if the Senior Leverage Ratio were greater
than or equal to 3.25 to 1 shall apply from such due date until such financial
statements are delivered.
