EXHIBIT 10.1 FIRST AMENDMENT AND CONSENT TO FIFTH AMENDED AND RESTATED CREDIT AGREEMENT This First Amendment and Consent to Fifth Amended and Restated Credit Agreement, dated as of March 29, 2006 (this "Amendment and Consent") is among DURA AUTOMOTIVE...
EXHIBIT 10.1
FIRST AMENDMENT AND CONSENT TO
FIFTH AMENDED AND RESTATED CREDIT AGREEMENT
This First Amendment and Consent to Fifth Amended and Restated Credit
Agreement, dated as of March 29, 2006 (this "Amendment and Consent") is among
DURA AUTOMOTIVE SYSTEMS, INC. (the "Parent"), the other Loan Guarantors from
time to time party to the Fifth Amended and Restated Credit Agreement, DURA
OPERATING CORP. (the "U.S. Borrower"), DURA AUTOMOTIVE SYSTEMS (CANADA), LTD.
(the "Canadian Borrower") (U.S. Borrower and Canadian Borrower are collectively
referred to herein as the "Borrowers"), the several banks and other financial
institutions or entities from time to time party to the Fifth Amended and
Restated Credit Agreement (the "Lenders"), BANK OF AMERICA, N.A., in its
capacity as collateral agent (the "Collateral Agent") and JPMORGAN CHASE BANK,
N.A., in its capacity as Administrative Agent for the Lenders (including its
Affiliates, the "Administrative Agent").
WITNESSETH:
WHEREAS, the Parent, the other Loan Guarantors, Borrowers, the Lenders, the
Collateral Agent and the Administrative Agent are parties to that certain Fifth
Amended and Restated Credit Agreement dated as of May 3, 2005 (the "Credit
Agreement"; capitalized terms not otherwise defined herein having the
definitions provided therefore in the Credit Agreement) and to certain other
documents executed in connection with the Credit Agreement;
WHEREAS, the Required Lenders wish to consent to certain transactions as
provided herein; and
WHEREAS, the parties hereto wish to amend certain provisions of the Credit
Agreement as provided herein.
NOW, THEREFORE, the parties hereto agree as follows:
1. Consent. Upon satisfaction of the conditions set forth in Section 3
herein the parties hereto agree that notwithstanding Section 6.08(c) of the
Credit Agreement and any other provision in the Credit Agreement to the
contrary, the Required Lenders hereby consent to the amendment of the Second
Lien Credit Agreement in the form attached hereto as Exhibit A.
2. Amendments
(a) Second Lien Term Loan. The definition of "Second Lien Term Loan" set
forth in Section 1.01 of the Credit Agreement is hereby amended by deleting the
reference to "$150,000,000" set forth therein and inserting the reference to
"$225,000,000" in place thereof.
(b) Indebtedness under Second Lien Credit Agreement. Section 6.01(k) of the
Credit Agreement is amended to delete the reference to "$150,000,000" set forth
therein and insert the reference to "$225,000,000" in place thereof.
(c) Capital Expenditures. Section 6.11 of the Credit Agreement is hereby
amended and restated to read as follows:
SECTION 6.11. Capital Expenditures. The Parent and its Subsidiaries shall
not make or commit to make Capital Expenditures, except Capital Expenditures of
Parent and its Subsidiaries not exceeding (i) $130,000,000 during the fiscal
year 2006 and (ii) $100,000,000 per fiscal year thereafter; provided that (a)
commencing with Capital Expenditures made in fiscal year 2006, such amount, if
not so expended in 2006 or thereafter, as applicable, may be carried over for
expenditure in the next succeeding fiscal year (for the avoidance of doubt, the
Capital Expenditure limitation in fiscal year 2006 shall not receive the benefit
of any unused Capital Expenditures from fiscal year 2005) and (b) Capital
Expenditures made pursuant to this Section 6.11 during any fiscal year shall be
deemed made, first, in respect of amounts permitted for such fiscal year as
provided above and, second, in respect of amounts carried over from the prior
fiscal year pursuant to clause (a) above.
3. Conditions Precedent. The effectiveness of this Amendment and Consent is
subject to the satisfaction of the following conditions precedent:
A. Execution of Amendment and Consent. Borrowers shall have executed and
delivered this Amendment and Consent.
B. Amendment Fee. U.S. Borrower shall have paid to the Administrative
Agent, for the ratable benefit of the Lenders who have executed this Amendment
and Consent (the "Consenting Lenders"), an amendment fee in the amount of
0.00075 of the U.S. Revolving Commitments of the Consenting Lenders.
C. Other Documents. Borrowers shall, and shall cause their Subsidiaries to
execute and deliver such other approvals, opinions, documents or materials as
the Administrative Agent may reasonably request.
D. No Existing Default. After giving effect to this Amendment and Consent,
no Default or Event of Default shall exist as of the date hereof.
4. Covenants of Borrower
A. Payment of Fees. Borrowers shall pay all accrued and unpaid fees, costs
and expenses to the extent then due and payable, together with the reasonable
legal fees and expenses of the Administrative Agent.
5. Miscellaneous
A. Captions. Section captions used in this Amendment and Consent are for
convenience only, and shall not affect the construction of this Amendment and
Consent.
B. Governing Law. This Amendment and Consent shall be a contract made under
and governed by the laws of the State of New York, but giving effect to federal
laws applicable
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to national banks. Whenever possible each provision of this Amendment and
Consent shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Amendment and Consent shall be
prohibited by or invalid under such law, such provision shall be ineffective to
the extent of such prohibition or invalidity, without invalidating the remainder
of such provision or the remaining provisions of this Amendment and Consent.
C. Counterparts. This Amendment and Consent may be executed in any number
of counterparts and by the different parties on separate counterparts, and each
such counterpart shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same Amendment and Consent.
D. Successors and Assigns. This Amendment and Consent shall be binding upon
the Parent, the other Loan Guarantors, Borrowers, the Lenders, the Collateral
Agent and the Administrative Agent and their respective successors and assigns,
and shall inure to the sole benefit of the Parent, the other Loan Guarantors,
the Borrowers, the Lenders and the Administrative Agent and their respective
successors and assigns.
E. References. Any reference to the Credit Agreement contained in any
notice, request, certificate or other document executed concurrently with or
after the execution and delivery of this Amendment and Consent shall be deemed
to include this Amendment and Consent unless the context shall otherwise
require.
F. Continued Effectiveness. Notwithstanding anything contained herein, the
terms of this Amendment and Consent are not intended to and do not serve to
effect a novation as to the Credit Agreement. The Credit Agreement and each of
the Loan Documents remain in full force and effect.
6. Intercreditor Agreement. The Lenders party hereto acknowledge and agree
that the Second Lien Term Loan is being increased by $75,000,000 and such
additional indebtedness shall constitute "Second Priority Obligations" under and
as defined in the Intercreditor Agreement.
7. Reaffirmation of Guaranty. Each of the Loan Guarantors hereby (a)
acknowledge and reaffirm all of their obligations under Article X of the Credit
Agreement and (b) acknowledge and agree that subsequent to, and taking into
account this Amendment and Consent, Article X of the Credit Agreement shall
remain in full force and effect in accordance with the terms thereof.
[Remainder of Page Intentionally Left Blank]
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Dated as of the day and year first above written.
DURA AUTOMOTIVE SYSTEMS, INC.,
as Parent Guarantor
By:
------------------------------------
Name:
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Title:
---------------------------------
DURA OPERATING CORP., as U.S.
Borrower
By:
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Name:
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Title:
---------------------------------
DURA AUTOMOTIVE SYSTEMS
(CANADA), LTD., as Canadian Borrower
By:
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Name:
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Title:
---------------------------------
DURA AUTOMOTIVE CANADA ULC, as a Loan
Guarantor
By:
------------------------------------
Name:
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Title:
---------------------------------
DURA ONTARIO INC., as a Loan Guarantor
By:
------------------------------------
Name:
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Title:
---------------------------------
[Signature Page to First Amendment and Consent to Fifth Amended and
Restated Credit Agreement]
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DURA CANADA LP, as a Loan Guarantor
By:
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Name:
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Title:
---------------------------------
TRIDENT AUTOMOTIVE LIMITED, as a Loan
Guarantor
By:
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Name:
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Title:
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TRIDENT AUTOMOTIVE CANADA CO., as a Loan
Guarantor
By:
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Name:
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Title:
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DURA HOLDINGS ULC, as a Loan Guarantor
By:
------------------------------------
Name:
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Title:
---------------------------------
DURA HOLDINGS CANADA LP, as a Loan
Guarantor
By:
------------------------------------
Name:
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Title:
---------------------------------
[Signature Page to First Amendment and Consent to Fifth Amended and
Restated Credit Agreement]
S-2
DURA OPERATING CANADA LP, as a Loan
Guarantor
By:
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Name:
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Title:
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AUTOMOTIVE AVIATION PARTNERS, LLC, as a
Loan Guarantor
By: DuraAircraft Operating Company,
LLC, its managing member
By: Dura Operating Corp.
Its: Sole Member
By:
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Name:
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Title:
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ADWEST ELECTRONICS, INC., as a Loan
Guarantor
By:
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Name:
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Title:
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XXXXXX AUTOMOTIVE, INC., as a Loan
Guarantor
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
[Signature Page to First Amendment and Consent to Fifth Amended and
Restated Credit Agreement]
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DURA CABLES NORTH LLC, as a Loan
Guarantor
By: Xxxxxx Automotive, Inc.
Its: Sole Member
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
DURA CABLES SOUTH LLC, as a Loan
Guarantor
By: Xxxxxx Automotive, Inc.
Its: Sole Member
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
DURA G.P., as a Loan Guarantor
By: Dura Operating Corp
Its: Managing General Partner
By:
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Name:
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Title:
---------------------------------
DURA SPICEBRIGHT, INC. as a Loan
Guarantor
By:
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Name:
----------------------------------
Title:
---------------------------------
[Signature Page to First Amendment and Consent to Fifth Amended and Restated
Credit Agreement]
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XXXX I MOLDED PLASTICS OF TENNESSEE,
INC., as a Loan Guarantor
By:
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Name:
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Title:
---------------------------------
DURA GLOBAL TECHNOLOGIES, INC., as a
Loan Guarantor
By:
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Name:
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Title:
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DURA AUTOMOTIVE SYSTEMS OF INDIANA,
INC., as a Loan Guarantor
By:
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Name:
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Title:
---------------------------------
DURA AIRCRAFT OPERATING COMPANY, LLC, as
a Loan Guarantor
By: Dura Operating Corp.
Its: Sole Member
By:
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Name:
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Title:
---------------------------------
DURA BRAKE SYSTEMS, L.L.C., as a Loan
Guarantor
By: Dura Operating Corp.
Its: Sole Member
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
[Signature Page to First Amendment and Consent to Fifth Amended and Restated
Credit Agreement]
S-5
DURA SHIFTER L.L.C., as a Loan Guarantor
By: Dura Operating Corp.
Its: Sole Member
By:
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Name:
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Title:
---------------------------------
DURA SERVICES L.L.C., as a Loan
Guarantor
By:
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Name:
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Title: Manager
DURA MANCELONA L.L.C., as a Loan
Guarantor
By:
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Name:
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Title: Manager
By:
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Name:
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Title: Manager
DURA FREMONT L.L.C., as a Loan Guarantor
By:
------------------------------------
Name:
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Title: Manager
DURA GLADWIN L.L.C., as a Loan Guarantor
By:
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Name:
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Title: Manager
[Signature Page to First Amendment and Consent to Fifth Amended and Restated
Credit Agreement]
S-6
DURA AUTOMOTIVE SYSTEMS CABLE
OPERATIONS, INC., as a Loan Guarantor
By:
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Name:
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Title:
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UNIVERSAL TOOL & STAMPING COMPANY, INC.,
as a Loan Guarantor
By:
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Name:
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Title:
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TRIDENT AUTOMOTIVE, L.P., as a Loan
Guarantor
By: Trident Automotive Ltd.
Its: General Partner
By:
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Name:
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Title:
---------------------------------
TRIDENT AUTOMOTIVE, L.L.C., as a Loan
Guarantor
By: Trident Automotive Canada Co.
Its: Managing Member
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
[Signature Page to First Amendment and Consent to Fifth Amended and Restated
Credit Agreement]
S-7
XXXXXX MOBILE PRODUCTS, INC., as a Loan
Guarantor
By:
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Name:
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Title:
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CREATION GROUP HOLDINGS, INC., as a Loan
Guarantor
By:
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Name:
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Title:
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XXXXXXXX, INC., as a Loan Guarantor
By:
------------------------------------
Name:
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Title:
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CREATION GROUP, INC., as a Loan
Guarantor
By:
------------------------------------
Name:
----------------------------------
Title:
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CREATION GROUP TRANSPORTATION, INC., as
a Loan Guarantor
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
[Signature Page to First Amendment and Consent to Fifth Amended and Restated
Credit Agreement]
S-8
XXXXXXXX, LLC, as a Loan Guarantor
By:
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Name:
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Title:
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SPEC-TEMP, INC., as a Loan Guarantor
By:
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Name:
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Title:
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CREATION WINDOWS, INC., as a Loan
Guarantor
By:
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Name:
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Title:
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CREATION WINDOWS, LLC, as a Loan
Guarantor
By:
------------------------------------
Name:
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Title:
---------------------------------
[Signature Page to First Amendment and Consent to Fifth Amended and
Restated Credit Agreement]
S-9
JPMORGAN CHASE BANK, N.A.,
individually, as Administrative Agent,
Issuing Bank and Swingline Lender
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
[Signature Page to First Amendment and Consent to Fifth Amended and
Restated Credit Agreement]
BANK OF AMERICA, N.A., individually,
as Collateral Agent and as a Lender
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
[Signature Page to First Amendment and Consent to Fifth Amended and
Restated Credit Agreement]
JPMORGAN CHASE BANK, N.A.,
TORONTO BRANCH
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
[Signature Page to First Amendment and Consent to Fifth Amended and
Restated Credit Agreement]
LENDER:
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By:
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Name:
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Title:
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[Signature Page to First Amendment and Consent to Fifth Amended and
Restated Credit Agreement]
EXHIBIT A
[Amendment to Second Lien Credit Agreement]
