EXHIBIT 4.22
SUPPLEMENTAL INDENTURE
Supplemental Indenture (this "Supplemental Indenture"), dated as of
October 22, 2003, by Creation Group Holdings, Inc., an Indiana corporation,
Creation Group, Inc., an Indiana corporation (each a "Guaranteeing Subsidiary"
and together the "Guaranteeing Subsidiaries"), Dura Operating Corp., a Delaware
corporation (the "Issuer"), Dura Automotive Systems, Inc., a Delaware
corporation ("Parent"), Dura G.P., a Delaware general partnership, Dura
Automotive Systems Cable Operations, Inc., a Delaware corporation, Universal
Tool & Stamping Company Inc., an Indiana corporation, Adwest Electronics, Inc.,
a Delaware corporation, Dura Automotive Systems of Indiana, Inc., an Indiana
corporation, Xxxxxx Automotive Inc., a Michigan corporation and Xxxx I Molded
Plastics of Tennessee, Inc., a Tennessee corporation, Xxxxxx Mobile Products,
Inc., an Illinois corporation (together with Parent, the "Existing Guarantors"),
and U.S. Bank Trust National Association, as trustee (the "Trustee") under the
Indentures (as hereinafter defined). Capitalized terms used herein without
definition shall have the meanings assigned to them in the Indentures.
W I T N E S S E T H
WHEREAS, the Issuer and the Existing Guarantors have previously
executed and delivered to the Trustee (i) an indenture, dated as of April 22,
1999, providing for the issuance of an aggregate principal amount of up to
$350,000,000 of 9% Senior Subordinated Notes due 2009, (ii) an indenture, dated
as of April 22, 1999, providing for the issuance of an aggregate principal
amount of up to 150,000,000 of 9% Senior Subordinated Notes due 2009; and (iii)
an indenture, dated as of June 22, 2001, providing for the issuance of an
aggregate principal amount of up to$600,000,000 of 9% Senior Subordinated Notes
due 2009 (collectively, and as supplemented and amended from time to time, the
"Indentures");
WHEREAS, pursuant to Section 4.17 of the Indentures, the Guaranteeing
Subsidiaries are required to become a Guarantor and execute a supplemental
indenture to the Indentures; and
WHEREAS, pursuant to Section 9.06 of the Indentures, the Trustee is
authorized to execute and deliver this Supplemental Indenture;
NOW THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt of which is hereby acknowledged, the parties
hereto mutually covenant and agree for the equal and ratable benefit of the
Holders of the Notes as follows:
1. Agreement to Guarantee. Each Guaranteeing Subsidiary hereby
agrees as follows:
(1) Along with all Guarantors named in the Indentures, to
unconditionally guarantee (each such guarantee to be
referred to herein as a "Note Guarantee") to each
Holder of a Note authenticated and delivered by the
Trustee and to the Trustee and its successors and
assigns, irrespective of the
validity and enforceability of this Supplemental
Indenture, the Notes or the obligations of the Issuer
hereunder or thereunder, that: (i) the principal of
and interest on the Notes will be promptly paid in
full when due, whether at maturity, by acceleration,
redemption or otherwise, and interest on the overdue
principal of and interest on the Notes, if any, if
lawful, and all other obligations of the Issuer to
the Holders or the Trustee hereunder or thereunder
will be promptly paid in full or performed, all in
accordance with the terms hereof and thereof; and
(ii) in case of any extension of time of payment or
renewal of any Notes or any of such other
obligations, that same will be promptly paid in full
when due or performed in accordance with the terms of
the extension or renewal, whether at stated maturity,
by acceleration or otherwise. Failing payment when
due of any amount so guaranteed or any performance so
guaranteed for whatever reason, each Guaranteeing
Subsidiary shall be jointly and severally obligated
to pay the same immediately. Each Guaranteeing
Subsidiary agrees that this is a guarantee of payment
and not a guarantee of collection.
(2) Each Guaranteeing Subsidiary hereby agrees that its
obligations hereunder shall be unconditional,
irrespective of the validity, regularity or
enforceability of the Notes or this Supplemental
Indenture, the absence of any action to enforce the
same, any waiver or consent by any Holder of the
Notes with respect to any provisions hereof or
thereof, the recovery of any judgment against the
Issuer, any action to enforce the same or any other
circumstance which might otherwise constitute a legal
or equitable discharge or defense of any other
Guarantor. Each Guaranteeing Subsidiary hereby waives
diligence, presentment, demand of payment, filing of
claims with a court in the event of insolvency or
bankruptcy of the Issuer, any right to require a
proceeding first against the Issuer, protest, notice
and all demands whatsoever and covenants that its
Note Guarantee shall not be discharged except by
complete performance of the obligations contained in
the Notes, the Indentures and this Note Guarantee.
(3) If any Holder or the Trustee is required by any court
or otherwise to return to the Issuer, to any
Guarantor, or any custodian, trustee, liquidator or
other similar official acting in relation to either
the Issuer or to any Guarantor, any amount paid by
either to the Trustee or such Holder, the Note
Guarantee, to the extent theretofore discharged,
shall be reinstated in full force and effect.
(4) Each Guaranteeing Subsidiary agrees that it shall not
be entitled to any right of subrogation in relation
to the Holders in respect of any Note Guarantee until
payment in full of all obligations guaranteed under
this Supplemental Indenture. Each Guaranteeing
Subsidiary further agrees that, as between it, on the
one hand, and the Holders and the Trustee, on the
other hand, (x) the
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maturity of the obligations guaranteed hereby may be
accelerated as provided in Article 6 of the
Indentures for the purposes of this Note 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
Indentures, such obligations (whether or not due and
payable) shall forthwith become due and payable by
each Guaranteeing Subsidiary for the purpose of this
Note Guarantee. Each Guaranteeing Subsidiary shall
have the right to seek contribution from any
non-paying Guarantor so long as the exercise of such
right does not impair the rights of the Holders under
this Note Guarantee.
2. Incorporation of Terms of Indentures. The obligations of each
Guaranteeing Subsidiary under the Note Guarantees shall be
governed in all respects by the terms of the Indentures and
shall constitute a Guarantee thereunder. Each of the parties
hereto shall be bound by the terms of the Indentures as they
relate to the Note Guarantees.
3. No Recourse Against Others. No stockholder, officer, director,
employee or incorporator, past, present or future, or a
Guaranteeing Subsidiary, as such, shall have any personal
liability under this Note Guarantee by reason of his, her or
its status as such stockholder, officer, director, employee or
incorporator.
4. NEW YORK LAW TO GOVERN. THE INTERNAL LAW OF THE STATE OF NEW
YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS SUPPLEMENTAL
INDENTURE BUT WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES
OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE
LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
5. Counterparts. The parties may sign any number of copies of
this Supplemental Indenture. Each signed copy shall be an
original, but all of them together represent the same
agreement.
6. Effect of Headings. The Section headings herein are for
convenience only and shall not affect the construction hereof.
7. Disclaimer by Trustee. The Trustee makes no representation as
to the validity of this Supplemental Indenture or the proper
authorization or due execution of this Supplemental Indenture
by the Issuer, the Existing Guarantors or the Guaranteeing
Subsidiaries.
* * * * *
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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: October 22, 2003 CREATION GROUP HOLDINGS, INC.
By: /s/ Xxxxx X. Xxxxx
-------------------------------
Name: Xxxxx X. Xxxxx
Its: President, Chief Financial
Officer and Treasurer
CREATION GROUP, INC.
By: /s/ Xxxxx X. Xxxxx
-------------------------------
Name: Xxxxx X. Xxxxx
Its: President, Chief Financial
Officer and Treasurer
DURA G.P.
By: Dura Operating Corp.
Its: General Partner
By: /s/ Xxxxx X. Xxxxx
-------------------------------
Name: Xxxxx X. Xxxxx
Its: President, Chief Financial
Officer and Treasurer
DURA OPERATING CORP.
By: /s/ Xxxxx X. Xxxxx
-------------------------------
Name: Xxxxx X. Xxxxx
Its: President, Chief Financial
Officer and Treasurer
DURA AUTOMOTIVE SYSTEMS CABLE
OPERATIONS, INC.
By: /s/ Xxxxx X. Xxxxx
-------------------------------
Name: Xxxxx X. Xxxxx
Its: President, Chief Financial
Officer and Treasurer
UNIVERSAL TOOL & STAMPING
COMPANY INC.
By: /s/ Xxxxx X. Xxxxx
-------------------------------
Name: Xxxxx X. Xxxxx
Its: President, Chief Financial
Officer and Treasurer
ADWEST ELECTRONICS, INC.
By: /s/ Xxxxx X. Xxxxx
-------------------------------
Name: Xxxxx X. Xxxxx
Its: President, Chief Financial
Officer and Treasurer
[Signature Page to Supplemental Indenture cont.]
DURA AUTOMOTIVE SYSTEMS OF
INDIANA, INC.
By: /s/ Xxxxx X. Xxxxx
-------------------------------
Name: Xxxxx X. Xxxxx
Its: President, Chief Financial
Officer and Treasurer
XXXXXX AUTOMOTIVE INC.
By: /s/ Xxxxx X. Xxxxx
-------------------------------
Name: Xxxxx X. Xxxxx
Its: President, Chief Financial
Officer and Treasurer
XXXX I MOLDED PLASTICS OF
TENNESSEE, INC.
By: /s/ Xxxxx X. Xxxxx
-------------------------------
Name: Xxxxx X. Xxxxx
Its: President, Chief Financial
Officer and Treasurer
DURA AUTOMOTIVE SYSTEMS, INC.
By: /s/ Xxxxx X. Xxxxx
-------------------------------
Name: Xxxxx X. Xxxxx
Its: President, Chief Financial
Officer and Treasurer
[Signature Page to Supplemental Indenture cont.]
XXXXXX MOBILE PRODUCTS, INC.
By: /s/ Xxxxx X. Xxxxx
-------------------------------
Name: Xxxxx X. Xxxxx
Its: President, Chief Financial
Officer and Treasurer
U.S. BANK TRUST NATIONAL
ASSOCIATION, as Trustee
By: /s/ Xxxxxxx X. Xxxxxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Its: Vice President
