EXHIBIT 10.21
FIRST AMENDMENT TO CREDIT AGREEMENT
FIRST AMENDMENT, dated as of February 25, 2005 (this
"Amendment"), to the Amended and Restated Credit Agreement, dated as of March
19, 1999, as amended and restated as of October 31, 2003 (such Amended and
Restated Credit Agreement, as amended, supplemented or otherwise modified from
time to time, the "Credit Agreement"), among DURA AUTOMOTIVE SYSTEMS, INC., as
parent guarantor ("DASI"), DURA OPERATING CORP., TRIDENT AUTOMOTIVE LIMITED,
DURA HOLDING GERMANY GMBH, DURA AUTOMOTIVE SYSTEMES EUROPE, S.A. and DURA
AUTOMOTIVE SYSTEMS (CANADA), LTD., as borrowers (collectively, the "Borrowers"),
the several banks and other financial institutions or entities from time to time
parties to the Credit Agreement (the "Lenders"), JPMORGAN CHASE BANK, N.A.
(formerly known as JPMorgan Chase Bank), as administrative agent (in such
capacity, the "Administrative Agent"), and BANK OF AMERICA, N.A., as syndication
agent and collateral agent.
W I T N E S S E T H:
WHEREAS, DASI and the Borrowers have requested that the
Lenders amend, and the Lenders have agreed to amend, certain of the provisions
of the Credit Agreement, upon the terms and subject to the conditions set forth
below;
NOW, THEREFORE, in consideration of the premises and mutual
agreements contained herein, and for other valuable consideration the receipt of
which is hereby acknowledged, DASI, the Borrowers, the Lenders and the
Administrative Agent hereby agree as follows:
1. Definitions. All terms defined in the Credit Agreement
shall have such defined meanings when used herein unless
otherwise defined herein.
2. Amendment to Section 1.1. Section 1.1 of the Credit
Agreement is hereby amended by inserting, in proper
alphabetical order, the following new defined term and related
definition:
"Senior Unsecured Indebtedness": any unsecured Indebtedness of
DASI or any of its Subsidiaries that (a) will not mature prior
to the final maturity date of the Tranche C Term Loans; (b)
has no scheduled amortization or payments of principal prior
to the final maturity date of the Tranche C Term Loans; (c)
has covenant, default and remedy provisions no more onerous or
expansive in scope than those set forth in this Agreement; (d)
if such Indebtedness is guaranteed, shall not have any
guarantor that is not a Guarantor under this Agreement; and
(e) is otherwise on terms and conditions reasonably
satisfactory to the Administrative Agent.
3. Amendments to Section 2.11. Section 2.11(a) of the Credit
Agreement is hereby amended in its entirety as follows:
"2.11 Mandatory Prepayments and Revolving Commitment
Reductions. (a) If (i)(A) any Indebtedness is issued or
incurred by DASI or any of its Subsidiaries pursuant to
Section 7.2(f) or (g), the proceeds of which are not
concurrently applied to the other purposes specified in
Section 7.2(f) or (g) and (B) as of the end of the fiscal
quarter immediately preceding the issuance or incurrence of
such Indebtedness the Senior Leverage Ratio is greater than or
equal to 2.00 to 1.00, or (ii) any Indebtedness is issued or
incurred by DASI or any of its Subsidiaries pursuant to
Section 7.2(o), then an amount equal to
100% of the Net Cash Proceeds thereof shall be applied on the
date of such issuance or incurrence toward the prepayment of
the Tranche C Term Loans and the reduction of the U.S.$
Revolving Commitments as set forth in Section 2.11(d)."
4. Amendments to Section 7.1.
(a) Section 7.1(a) of the Credit Agreement is hereby amended
by deleting the table appearing at the end of subsection
7.1(a) of the Credit Agreement and substituting in lieu
thereof the following:
Fiscal Quarter Ratio
-------------- -----
March 31, 2005 6.00 to 1.00
June 30, 2005 5.75 to 1.00
September 30, 2005 5.50 to 1.00
December 31, 2005 5.25 to 1.00
March 31, 2006 5.25 to 1.00
June 30, 2006 4.75 to 1.00
September 30, 2006 4.50 to 1.00
December 31, 2006 4.50 to 1.00
March 31, 2007 4.50 to 1.00
June 30, 2007 4.50 to 1.00
September 30, 2007 4.00 to 1.00
December 31, 2007 4.00 to 1.00
March 31, 2008 4.00 to 1.00
June 30, 2008 4.00 to 1.00
September 30, 2008 3.75 to 1.00
(b) Section 7.1(b) of the Credit Agreement is hereby amended
by deleting the table appearing at the end of subsection
7.1(b) of the Credit Agreement and substituting in lieu
thereof the following:
Fiscal Quarter Ratio
-------------- -----
March 31, 2005 2.75 to 1.00
June 30, 2005 2.75 to 1.00
September 30, 2005 2.50 to 1.00
December 31, 2005 2.50 to 1.00
March 31, 2006 2.50 to 1.00
June 30, 2006 and thereafter 2.25 to 1.00
(c) Section 7.1(c) of the Credit Agreement is hereby amended
by deleting the table appearing at the end of subsection
7.1(c) of the Credit Agreement and substituting in lieu
thereof the following:
Fiscal Quarter Ratio
-------------- -----
March 31, 2005 1.80 to 1.00
June 30, 2005 1.90 to 1.00
September 30, 2005 1.90 to 1.00
December 31, 2005 1.90 to 1.00
March 31, 2006 1.90 to 1.00
June 30, 2006 2.00 to 1.00
September 30, 2006 2.00 to 1.00
December 31, 2006 2.00 to 1.00
March 31, 2007 2.00 to 1.00
June 30, 2007 2.00 to 1.00
September 30, 2007 2.25 to 1.00
December 31, 2007 2.25 to 1.00
March 31, 2008 2.25 to 1.00
June 30, 2008 2.25 to 1.00
September 30, 2008 2.50 to 1.00
5. Amendments to Section 7.2.
(a) Section 7.2 of the Credit Agreement is hereby amended by
deleting the "and" at the end of clause (m) thereof and
inserting immediately prior to the "." at the end of clause
(n) thereof, the following:
"and;
(o) Senior Unsecured Indebtedness or Subordinated Indebtedness
in an aggregate principal amount not to exceed $125,000,000 at
any one time outstanding, provided that the Net Cash Proceeds
thereof are applied to prepay the Tranche C Term Loans in
accordance with Section 2.11"
6. Amendments to Section 7.4. Clause (g) of Section 7.4 of the
Credit Agreement is hereby amended in its entirety as follows:
"(g) customary indemnification obligations incurred in
connection with Acquisitions, asset Dispositions or the
issuance of Senior Unsecured Indebtedness or Subordinated
Indebtedness permitted hereunder."
7. Amendments to Section 7.12. Section 7.12 of the Credit
Agreement is hereby amended in its entirety as follows:
"7.12 Restrictions on Subsidiaries. Permit any Subsidiary to
enter into any agreement or instrument (except (a) the
agreements relating to (i) Indebtedness incurred pursuant to
Section 7.2(o) or (ii) the Senior Unsecured Notes similar to
those in effect on the Closing Date and (b) customary
restrictions imposed on the Finance Subsidiary in connection
with the Permitted Receivables Transactions) which by its
terms restricts the ability of such Subsidiary (i) to declare
or pay dividends or make similar distributions, (ii) to repay
principal of, or pay any interest on, any indebtedness owed to
Dura or any other Subsidiary, (iii) to make payments of
royalties, licensing fees and similar amounts to
Dura or any other Subsidiary or (iv) to make loans or
advances to Dura or any other Subsidiary."
8. Representations; No Default. On and as of the date hereof,
and after giving effect to this Amendment, (i) DASI and each
Borrower certifies that no Default or Event of Default has
occurred or is continuing, and (ii) DASI and each Borrower
confirms, reaffirms and restates that the representations and
warranties set forth in Section 4 of the Credit Agreement are
true and correct in all material respects, provided that the
references to the Credit Agreement therein shall be deemed to
be references to the Credit Agreement as amended by this
Amendment.
9. Amendment Fee. In consideration of the agreement of the
Required Lenders to the amendments contained herein, DASI and
the Borrowers agree to pay to each Lender (hereinafter, an
"Executing Lender") which executes and delivers this Amendment
to the Administrative Agent or its counsel by 12:00 noon, New
York City time, on Friday, February 25, 2005, an amendment fee
in an amount equal to 0.125% of such Executing Lender's
Aggregate Exposure on the Effective Date (as defined below),
after giving effect to the repayment required by paragraph
10(d) below. The amendment fee shall be payable by DASI and
the Borrowers on the Effective Date in immediately available
funds to the Administrative Agent on behalf of the applicable
Executing Lender.
10. Conditions to Effectiveness. This Amendment shall become
effective on and as of the date (the "Effective Date") that:
(a) the Administrative Agent shall have received counterparts
of this Amendment, duly executed and delivered by a duly
authorized officer of DASI and each Borrower;
(b) the Administrative Agent shall have received executed
Lender Consent Letters, substantially in the form of Exhibit A
hereto ("Lender Consent Letters"), from Lenders whose consent
is required pursuant to Section 10.1 of the Credit Agreement;
(c) The Administrative Agent shall have received all fees
required to be paid on or before the Effective Date, and all
expenses required to be paid on or before the Effective Date
for which invoices have been timely presented. The reasonable
fees and expenses of legal counsel shall be paid not later
than 10 days after receipt of an invoice from such counsel,
whether before or after the Effective Date; and
(d) Dura shall have repaid $35,000,000 of principal of the
Tranche C Term Loans outstanding plus any accrued interest
thereon, to be paid and applied as set forth in Sections 2.10
and 2.17, respectively.
11. Limited Consent and Amendment. Except as expressly amended
herein, the Credit Agreement shall continue to be, and shall
remain, in full force and effect. This Amendment shall not be
deemed to be a waiver of, or consent to, or a modification or
amendment of, any other term or condition of the Credit
Agreement or to prejudice any other right or rights which the
Lenders may now have or may have in the future under or in
connection with the Credit Agreement or any of the instruments
or agreements referred to therein, as the same may be amended
from time to time.
12. Counterparts. This Amendment may be executed by one or
more of the parties hereto in any number of separate
counterparts and all of said counterparts taken together shall
be deemed to constitute one and the same instrument.
13. Loan Document. This Amendment is deemed to be a "Loan
Document" for purposes of the Credit Agreement.
14. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF NEW YORK.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed and delivered by their respective duly authorized
officers as of the date first above written.
DURA AUTOMOTIVE SYSTEMS, INC.
By: /s/ XXXXX X. XXXXX
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Name: Xxxxx X. Xxxxx
Title: Vice President and Chief Financial Officer
DURA OPERATING CORP.
By: /s/ XXXXX X. XXXXX
--------------------------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President and Chief Financial Officer
TRIDENT AUTOMOTIVE LIMITED
By: /s/ XXXXX X. XXXXX
--------------------------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President and Chief Financial Officer
DURA HOLDING GERMANY GMBH
By: /s/ XXXXXX XXX XXXXXX
--------------------------------------------------
Name: Xxxxxx xxx Xxxxxx
Title: Division President Body & Glass
DURA AUTOMOTIVE SYSTEMES EUROPE S.A.
By: /s/ XXXXXXXX XXXXXXXXX
--------------------------------------------------
Name: Xxxxxxxx Xxxxxxxxx
Title: President
DURA AUTOMOTIVE SYSTEMS (CANADA), LTD.
By: /s/ XXXXX X. XXXXX
--------------------------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President and Chief Financial Officer
JPMORGAN CHASE BANK, as a Lender and as
Administrative Agent
By: /s/ XXXXX X. XXXXX
---------------------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
BANK OF AMERICA, N.A., as a Lender and as
Syndication Agent and as Collateral Agent
By: /s/ XXXX X. XXXXXXX
---------------------------------------------
Name: Xxxx X. Xxxxxxx
Title: SVP, Industrial Portfolio Manager
