EXHIBIT 10.4
SUPPLEMENTAL INDENTURE
Supplemental Indenture (this "Supplemental Indenture"), dated as of
February 21, 2002, by and among Dura G.P., a Delaware general partnership (the
"Guaranteeing Subsidiary"), Dura Operating Corp., a Delaware corporation (the
"Issuer"), Dura Automotive Systems, Inc., a Delaware corporation ("Parent"),
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
Subsidiary is 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. The 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, the Guaranteeing Subsidiary shall be jointly
and severally obligated to pay the same immediately. The
Guaranteeing Subsidiary agrees that this is a guarantee of
payment and not a guarantee of collection.
(2) The 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. The 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) The 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. The Guaranteeing Subsidiary further agrees that, as
between it, on the one hand, and the Holders and the Trustee,
on the other hand, (x) the maturity of the obligations
guaranteed hereby may be accelerated as provided in Article 6
of the Indentures for the purposes of this Note Guarantee,
notwithstanding any stay, injunction or other prohibition
preventing such
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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 the Guaranteeing
Subsidiary for the purpose of this Note Guarantee. The
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 the
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 the 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 Subsidiary.
* * * * *
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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: February 21, 2002
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
Assistant Secretary
DURA OPERATING CORP.
By: /s/ Xxxxx X. Xxxxx
------------------------
Name: Xxxxx X. Xxxxx
Its: President, Chief
Financial Officer and
Assistant Secretary
DURA AUTOMOTIVE SYSTEMS CABLE
OPERATIONS, INC.
By: /s/ Xxxxx X. Xxxxx
------------------------
Name: Xxxxx X. Xxxxx
Its: President, Chief
Financial Officer and
Treasurer
[Signature Page to Supplemental Indenture cont.]
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
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
[Signature Page to Supplemental Indenture cont.]
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
Assistant Secretary
XXXXXX MOBILE PRODUCTS, INC.
By: /s/ Xxxxx X. Xxxxx
------------------------
Name: Xxxxx X. Xxxxx
Its: President, Chief
Financial Officer and
Treasurer
[Signature Page to Supplemental Indenture cont.]
U.S. BANK TRUST NATIONAL
ASSOCIATION, as Trustee
By: /s/ Xxxxxxx Xxxxxxxx
------------------------
Name: Xxxxxxx Xxxxxxxx
------------------------
Its: Vice President
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