EXHIBIT 10.3
FOURTH AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
This FOURTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT dated as
of April 17, 2002 (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"), JPMORGAN CHASE BANK, as Syndication Agent, BANK OF AMERICA,
N.A., acting through its Canada Branch (as assignee of Bank of America Canada),
as Canadian Lender, and BANK OF AMERICA, N.A., 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, as
amended as of May 10, 2001, June 15, 2001 and August 24, 2001 (the "Agreement").
B. The Borrowers, the Required Lenders and the Agent wish to amend the
Agreement to permit the issuance of certain senior indebtedness by Dura
guaranteed by DASI and certain Subsidiaries and certain other changes to other
provisions of the Agreement.
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 amending the following definitions to read in their
entirety as follows:
"Facility means any of the Tranche A Term Facility, the
Tranche B Term Facility, the Tranche C Term Facility or the Revolving
Facility.
Indebtedness of any Person means, without duplication, the
following (other than trade payables and accrued expenses entered into
in the ordinary course of business): (a) all indebtedness for borrowed
money of such Person; (b) all obligations issued, undertaken or assumed
by such Person as the deferred purchase price of property or services
if secured by a Lien (including all indebtedness of such Person created
or arising under any conditional sale or other title retention
agreement)(even though the rights and remedies of the seller or lender
under such agreement in the event of default are limited to
repossession or sale of such property); (c) all non-contingent
reimbursement or
payment obligations of such Person with respect to Surety Instruments
(such as, for example, unpaid reimbursement obligations in respect of a
drawing under a letter of credit); (d) all obligations of such Person
evidenced by notes, bonds, debentures or similar instruments, including
obligations so evidenced incurred in connection with the acquisition of
property, assets or businesses; (e) all obligations of such Person with
respect to capital leases or leases which should be classified as
capital leases in accordance with GAAP; (f) all net obligations of such
Person with respect to Swap Contracts (such obligations to be equal at
any time to the aggregate net amount that would have been payable by
such Person at the most recent fiscal quarter end in connection with
the termination of such Swap Contracts at such fiscal quarter end but
excluding any Swap Contracts entered into with respect to the Senior
Unsecured Notes); (g) all indebtedness of other Persons referred to in
clauses (a) through (f) above secured by (or for which the holder of
such Indebtedness has an existing right, contingent or otherwise, to be
secured by) any Lien upon or in property (including accounts and
contracts rights) owned by such Person, even though such Person has not
assumed or become liable for the payment of such Indebtedness; (h)
Receivables Securitization Outstandings; and (i) all Guaranty
Obligations of such Person in respect of indebtedness or obligations of
others of the kinds referred to in clauses (a) through (h) above.
Term Loans means the Tranche A Term Loans, the Tranche B Term
Loans and the Tranche C Term Loans."
2.2 Section 1.1 of the Agreement is further amended as of the
Amendment Effective Date by (i) adding the phrase "or the Tranche C Term Loan
Supplement" after "Articles II, III, V, IV or VI" in the definition of
"Borrowing", (ii) adding "or the Tranche C Term Loan Supplement" after "or 5.2"
in the definition of "Borrowing Date", (iii) adding "or the Tranche C Term
Facility" after "the Tranche B Term Facility" in both places where such phrase
occurs in the definition of "Interest Period", and (iv) adding the phrase "or
the Senior Unsecured Notes" after the phrase "Subordinated Indebtedness" in
clause (b) of the definition of "Net Cash Proceeds" therein.
2.3 Section 1.1 of the Agreement is further amended as of the
Amendment Effective Date by inserting the following definitions in the
appropriate alphabetical positions:
"Fourth Amendment means the Fourth Amendment dated as of April
17, 2002 to this Agreement.
PPG means PPG Industries, Inc., a Pennsylvania corporation or
any of its subsidiaries.
Receivables Securitization Outstandings means the outstanding
principal amount of loans held by security assignees or transferees of
(or of interests in) receivables of DASI and its Subsidiaries in
connection with Receivables Securitization Transactions.
Receivables Securitization Transaction means any security
assignment or other grant of a security interest by DASI or any
Subsidiary in accounts receivable, lease receivables or other payment
obligations owing to DASI or such Subsidiary.
-2-
Senior Unsecured Notes means senior unsecured notes issued by
Dura in April, 2002 having terms and conditions reasonably acceptable
to the Agent and any refinancing thereof with a maturity no earlier
than the Tranche B Final Maturity Date and on other terms and
conditions substantially similar to such senior unsecured notes issued
in April, 2002.
Tranche C Term Facility means a U.S. Dollar term loan facility
to Dura provided under the Tranche C Term Loan Supplement to this
Agreement.
Tranche C Term Loan - see Section 2.17 of the Fourth
Amendment.
Tranche C Term Loan Supplement - see Section 2.17 of the
Fourth Amendment."
2.4 Section 1.3 of the Agreement is amended as of the
Amendment Effective Date by adding the following sentence at the end of such
section:
"It is hereby recognized and agreed by the parties to this Agreement
that any effect of implementation of FAS No. 142 in the year 2002 and
thereafter is eliminated from the operation of any term, provision or
covenant in this Agreement including, without limitation, any
calculation of consolidated total assets and consolidated net worth but
without affecting the requirement that any financial statements
required to be delivered under Section 10.1 be prepared in conformity
with GAAP as in effect at the time of such financial statements,
including as GAAP may then be modified by FAS No. 142."
2.5 Notwithstanding Section 2.8 of the Agreement, the Net Cash
Proceeds of the Senior Unsecured Notes shall be applied as follows:
first, the Borrowers shall prepay all Tranche A Term Loans;
second, the Borrowers shall prepay outstanding Revolving Group
Loans, Swing Line Loans and Canadian Loans; and
third, if no Revolving Group Loans, Swing Line Loans and
Canadian Loans remain outstanding, the Borrowers may retain any
remaining Net Cash Proceeds as cash on the Borrowers' balance sheet or
repay other Obligations under the Agreement, provided that after giving
effect thereto, DASI and the Borrowers would be in compliance with
Sections 11.10, 11.11, 11.12 and 11.13 of the Agreement determined on a
pro forma basis as of March 31, 2002 assuming the issuance of the
Senior Unsecured Notes and application of the Net Cash Proceeds thereof
had then occurred.
Section 2.8(e) of the Agreement is amended as of the Amendment
Effective Date by adding "and the Tranche C Term Loans" after the phrase "the
Tranche B Term Loans" in both places where it occurs therein and by adding "or
Tranche C Term Loan" after the phrase "such Tranche B Term Loan" therein.
2.6 Section 9.16 of the Agreement is amended as of the
Amendment Effective Date by adding thereto the following sentence: "As of April
17, 2002, DASI has no Subsidiaries other than those specifically disclosed in
part (h) of Schedule 9.16." Schedule 9.16 to the
-3-
Agreement is amended as of the Amendment Effective Date by adding thereto part
(h) thereof attached to this Amendment.
2.7 Section 11.1 of the Agreement is amended as of the
Amendment Effective Date by deleting the word "and" from the end of subsection
(m) thereof, adding the word "and" at the end of subsection (n) thereof and
adding the following additional subsection (o):
"(o) first-priority Liens securing Indebtedness permitted
under Section 11.5(k)."
2.8 Section 11.4 of the Agreement is amended as of the
Amendment Effective Date so that subsection (g) thereof reads in its entirety as
follows:
"(g) (i) Investments of assets in a Joint Venture with PPG in
an aggregate value as of the date of such Investment (net of
liabilities assumed by such Joint Venture as to which DASI and its
Subsidiaries are released) not in excess of U.S.$40,000,000, and (ii)
other Investments in (A) Joint Ventures not resulting in an Acquisition
and (B) minority interests; provided that the aggregate amount of all
outstanding Investments under this clause (g)(ii) made by DASI or any
Subsidiary (the amount of each such Investment to be determined as of
the date of such Investment) shall not exceed 15% of the consolidated
net worth of DASI;"
2.9 Section 11.5 of the Agreement is amended as of the
Amendment Effective Date so that subsections (h) and (i) thereof read in their
entirety as follows, the word "; and" is added at the end of subsection (j)
thereof and an additional clause (k) is added as follows:
"(h) Senior Unsecured Notes in a principal amount not to
exceed U.S.$350,000,000; provided that the Net Cash Proceeds of Senior
Unsecured Notes issued in April, 2002 are applied in accordance with
the Fourth Amendment and that the Net Cash Proceeds of Senior Unsecured
Notes issued thereafter are used to refinance other Senior Unsecured
Notes;
(i) other Indebtedness of any Subsidiary which is not provided
by DASI or any other Subsidiary; provided that (i) the outstanding
principal amount of all Indebtedness permitted solely by this
subsection (i) shall not at any time exceed a Dollar Equivalent amount
of U.S.$75,000,000 or, with respect to any one Subsidiary,
U.S.$30,000,000;"
"(k) Receivables Securitization Outstandings not in excess of
U.S.$60,000,000."
2.10 Section 11.8 of the Agreement is amended as of the
Amendment Effective Date so that subsections (b) and (h) thereof read in their
entirety as follows:
"(b) Swap Contracts entered into in the ordinary course of
business and not for speculative purposes (including any Swap Contract
entered into pursuant to Section 10.15);"
"(h) Guaranty Obligations in respect of the Indebtedness or
other liabilities of Joint Ventures or Persons in which DASI or any
Subsidiary has a minority interest, provided that the aggregate amount
of all Guaranty Obligations permitted solely by this
-4-
subsection (h) which are incurred after the date hereof and which are
permitted solely by subsection 11.4(g), shall not exceed
U.S.$25,000,000;"
2.11 Section 11.9 of the Agreement is amended as of the
Amendment Effective Date to read in its entirety as follows:
"11.9 Restrictions on Subsidiaries. DASI shall not
permit any Subsidiary to enter into any agreement or
instrument (except the agreements relating to the Senior
Unsecured Notes) 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."
2.12 Sections 11.10, 11.11, 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 and any gains and losses from dispositions of a
Disposed Business or Disposed Subsidiary) 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 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
on or after March 31, 2002 and
on or prior to March 31, 2003 1.40:1
Any fiscal quarter ending
thereafter 1.50:1
11.11 Net Worth. DASI shall not permit the sum of (x) its
consolidated stockholders equity (excluding currency translation
adjustments after December 31, 2001 but including the Trust Preferred
Stock or, if issued, the Trust Preferred Stock Debentures of DASI) plus
(y) the amount of any extraordinary non-cash charge with respect to
goodwill effected in 2002 in implementing FAS No. 142, in each case
determined as of the last day of any fiscal quarter, to be less than
the sum of (i) U.S. $425,000,000 plus (ii) 75% of the Net Cash Proceeds
of equity securities of DASI issued on or after December 31, 2001.
-5-
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)
3.00:1 on and prior to September 30, 2003, and (ii) 2.75:1 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) 5.25:1 on or prior to September 30, 2002, (ii) 5.00:1 after
September 30, 2002 and on or prior to September 30, 2003, or (iii)
4.50:1 thereafter."
2.13 Section 11.14 of the Agreement is amended as of the
Amendment Effective Date by adding the phrase "or Senior Unsecured Notes" after
the phrase "Subordinated Indebtedness" in clause (iii) thereof and by amending
clause (e) thereof to read in its entirety as follows:
"(e) so long as no Event of Default and Unmatured Event of
Default exists or would result therefrom, DASI or Dura may (i) make any
interest payment on the Senior Unsecured Notes, (ii) make any other
payment, acquisition, redemption or other retirement or distribution on
the Senior Unsecured Notes from proceeds of equity issued by DASI and
not required to be applied otherwise under this Agreement, (iii) make
any other payments, acquisitions, redemptions or other retirements or
distributions on the Senior Unsecured Notes not in excess of
U.S.$100,000,000 in the aggregate for all such payments, and (iv) may
refinance Senior Unsecured Notes with the proceeds of other Senior
Unsecured Notes permitted to be incurred under Section 11.5(h);"
2.14 Section 14.8(a) of the Agreement is amended as of the
Amendment Effective Date by deleting the parenthetical phrase "(or such lesser
amount as may be agreed to by DASI and the Agent in their sole discretion in the
case of an assignment to an Affiliate of such Lender)" and inserting the
following parenthetical phrase:
"(or (i) in the case of any assignment of Tranche B Term Loans
or Tranche C Term Loans, U.S.$1,000,000, or (ii) such lesser amount as
may be agreed to by DASI and the Agent in their sole discretion in the
case of an assignment to an Affiliate of such Lender)"
2.15 JPMorgan Chase Bank is hereby designated Syndication
Agent with respect to the Agreement. Notwithstanding such designation, JPMorgan
Chase Bank shall not have any right, power, obligation, liability,
responsibility or duty under the Agreement other than those applicable to all
Lenders as such.
2.16 A Revolving Lender, Hamilton Bank, N.A., was closed on
January 11, 2002 and the Federal Deposit Insurance Corporation was appointed its
receiver. The Federal Deposit Insurance Corporation as such receiver may
repudiate the U.S.$10,000,000 Revolving Commitment of Hamilton Bank, N.A. under
the Agreement. All outstanding amounts owing to Hamilton Bank, N.A. under the
Agreement have been paid by the Borrowers. The parties hereby confirm that the
U.S.$10,000,000 Revolving Commitment of Hamilton Bank, N.A. is terminated
without replacement, Hamilton Bank, N.A. is no longer a Lender under the
Agreement, the aggregate Revolving Commitments are accordingly reduced to
U.S.$390,000,000 and each
-6-
remaining Revolving Lender holds participations in outstanding Letters of
Credit, Canadian Loans and Swing Line Loans based on its increased Pro Rata
Share after giving effect to such termination of the Revolving Commitment of
Hamilton Bank, N.A.
2.17 Dura may borrow additional term loans ("Tranche C Term
Loans"), the proceeds of which shall be used to prepay Tranche B Term Loans,
from lenders who become party to the Agreement pursuant to a supplemental
agreement to the Agreement (the "Tranche C Term Loan Supplement") with Dura and
the Agent in form reasonably acceptable to Dura and the Agent. The Tranche C
Term Loan Supplement shall specify the terms of the scheduled repayment of the
Tranche C Term Loans and the provisions relating to interest on the Tranche C
Term Loans, provided that the scheduled amortization and final maturity of the
Tranche C Term Loans shall not be earlier than the original scheduled
amortization and final maturity of the Tranche B Term Loans being prepaid with
the proceeds of the Tranche C Term Loans. The lenders entering into the Tranche
C Term Loan Supplement shall be parties to the Agreement as Lenders with all the
rights and obligations of Lenders thereunder. The Borrowers shall enter into,
and cause the other applicable Loan Parties to enter into, such amendments to
Mortgages and other Collateral Documents and take such other actions as the
Agent or the Required Lenders may from time to time reasonably request to assure
that the first priority security interest or mortgage of the Agent in all
Collateral continues to secure all Obligations, including all obligations in
respect of the Tranche C Term Loans, and Dura shall, and shall cause the other
Guarantors, to reaffirm their respective Guaranties.
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 such Borrower of this Amendment, and the performance by DASI and
each such Borrower of this Amendment and the Agreement, as amended
hereby, are within the corporate powers of DASI and 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 such
Borrower, enforceable in accordance with their terms, except as
enforceability may be limited by applicable bankruptcy, insolvency or
similar laws affecting the enforcement of creditors' rights generally
or by equitable principles relating to enforceability.
(iii) No Default. No Event of Default or Unmatured Event of
Default has occurred and is continuing.
(iv) No Material Adverse Effect. No Material Adverse Effect
has occurred and is continuing since December 31, 2001.
-7-
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 on the first
date on which all of the following shall have occurred (the "Amendment Effective
Date"): (i) receipt by the Agent on or before April 18, 2002 of counterparts of
this Amendment (whether by facsimile or otherwise) executed by DASI, the
Borrowers, the Agent and the Required Lenders, (ii) receipt by Dura of not less
than $175,000,000 in gross proceeds of the Senior Unsecured Notes, (iii) receipt
by the Agent for the benefit of each Lender consenting to this Amendment of an
amendment fee equal to 0.10% of such Lender's Commitments and Term Loans
outstanding prior to application of the Net Cash Proceeds of the Senior
Unsecured Notes in accordance with this Amendment, and (iv) receipt by the Agent
on or before April 18, 2002 of the following, each in form and substance
reasonably 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.
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]
-8-
IN WITNESS WHEREOF, the parties have executed this Amendment as of the
date first above written.
DURA AUTOMOTIVE SYSTEMS, INC.
By: /s/ DAVID R. BOVEE
------------------------
Title: VICE PRESIDENT & CFO
---------------------
DURA OPERATING CORP.
By: /s/ DAVID R. BOVEE
------------------------
Title: VICE PRESIDENT & CFO
---------------------
BANK OF AMERICA, N.A., AS AGENT
By: /s/ DAVID PRICE
------------------------
Title: VICE PRESIDENT
---------------------
S-1 FOURTH AMENDMENT