EXHIBIT 10.5
TRANCHE C TERM LOAN SUPPLEMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
This TRANCHE C TERM LOAN SUPPLEMENT TO AMENDED AND RESTATED CREDIT
AGREEMENT dated as of April 18, 2002 (this "Supplement") is entered into among
DURA OPERATING CORP. ("Dura"), the FINANCIAL INSTITUTIONS LISTED ON THE
SIGNATURE PAGES HEREOF (the "Tranche C Term Lenders"), and BANK OF AMERICA,
N.A., as agent for the Lenders under the Agreement referred to below (the
"Agent").
RECITALS
A. Dura Automotive Systems, Inc., Dura and certain subsidiaries of
Dura, certain financial institutions 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, August 24, 2001 and April 17, 2002 (the
"Agreement").
B. Pursuant to Section 2.17 of the Fourth Amendment dated as of April
17, 2002 to the Agreement, Dura, the Tranche C Term Lenders and the Agent are
entering into this Supplement to provide for the making of Tranche C Term Loans
by the Tranche C Term Lenders to Dura, to specify certain terms of the Tranche C
Term Loans and to join the Tranche C Term Lenders as parties to the Agreement as
Lenders thereunder.
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. Tranche C Term Loans.
2.1 Tranche C Term Loans. Each Tranche C Term Lender severally
agrees, on the terms and conditions set forth herein, to make loans in U.S.
Dollars to Dura (each such loan, a "Tranche C Term Loan") on April 18, 2002 in
an aggregate Dollar Equivalent amount not to exceed at any time outstanding the
amount set forth opposite such Tranche C Term Lender's name under the heading
"Tranche C Term Loan" on Schedule 2.1 hereto; provided that
(i) after giving effect to the Borrowing of the Tranche C Term
Loans, the outstanding principal Dollar Equivalent amount of all
Tranche C Term Loans shall not exceed U.S.$150,000,000; and
(ii) after giving effect to the Borrowing of the Tranche C
Term Loans, the amount of such Tranche C Term Lender's Tranche C Term
Loans shall not exceed such Tranche C Term Lender's Pro Rata Share of
all then outstanding Tranche C Term Loans.
Amounts borrowed as Tranche C Term Loans which are repaid or prepaid may not be
reborrowed. The obligation of the Tranche C Term Lenders to make Tranche C Term
Loans shall expire concurrently on the earlier of (A) April 30, 2002 and (B)
the date on which Tranche C Term Loans are made hereunder. The proceeds of all
Tranche C Term Loans shall be used to prepay Tranche B Term Loans.
2.2 Number of Interest Periods. After giving effect to the
Borrowing or any conversion or continuation of the Tranche C Term Loans, there
may not be in effect more than three different Interest Periods for all Tranche
C Term Loans.
2.3 Repayment. Dura shall repay the Tranche C Term Loans in
installments as set forth in Schedule 2.3 hereto, with the remaining
outstanding principal amount of all Tranche C Term Loans being payable in full
on December 31, 2008.
2.4 Interest. Each Tranche C Term Loan shall bear interest on
the outstanding principal amount thereof from the date on which such Tranche C
Term Loan is made to the date payment thereof is due at a rate per annum equal
to the Offshore Rate plus 2.50% or the U.S. Base Rate plus 1.00%, as the case
may be (and subject to Dura's right to convert to the other Type of Loan under
Section 2.4 of the Agreement).
2.5 Conditions to Making of Tranche C Term Loans. In addition
to the conditions precedent to borrowing set forth in Section 8.4 of the
Agreement, the obligation of each Tranche C Term Lender to make its Tranche C
Term Loan is subject to the following conditions that:
(a) the "Amendment Effective Date" under and as defined in the
Fourth Amendment dated as of April 17, 2002 to the Agreement shall have
occurred or be occurring concurrently with the making of such Tranche C Term
Loan;
(b) receipt by the Agent of Notes executed by Dura payable to
the order of the Tranche C Term Lenders evidencing the Tranche C Term Loans;
(c) receipt by the Agent of counterparts of this Supplement
(whether by facsimile or otherwise) executed by Dura, the Agent and the Tranche
C Term Lenders; and
(d) receipt by the Agent of the following, each in form and
substance reasonably satisfactory to the Agent: (i) a certificate of Dura as to
authorizing resolutions with respect to this Supplement and the incumbency and
signatures of officers, and (ii) an opinion of U.S. counsel to DASI and the
Borrowers as to this Supplement.
-2-
2.6 Collateral Matters. Within 60 days of the making of the
Tranche C Term Loans, (x) Dura shall, and shall cause the other 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 (y) Dura
shall cause the Guarantors to reaffirm their Guaranties.
2.7 Lenders. With effect on and after the date the conditions
set forth in Section 2.5 hereof are met, each Tranche C Term Lender shall be a
party to the Agreement as a Lender and have all of the rights and be obligated
to perform all of the obligations of a Lender under the Credit Agreement,
including the requirements concerning confidentiality and the payment of
indemnification. Each Tranche C Term Lender agrees that it will perform in
accordance with their terms all of the obligations which by the terms of the
Agreement are required to be performed by it as a Lender.
2.8 Independent Credit Decision. Each Tranche C Term Lender
(a) acknowledges that it has received a copy of the Agreement and the Schedules
and Exhibits thereto, together with copies of the most recent financial
statements referred to in Section 10.1 of the Agreement, and such other
documents and information as it has deemed appropriate to make its own credit
and legal analysis and decision to enter into this Supplement and the Agreement;
and (b) agrees that it will, independently and without reliance upon the
Arranger, the Agents or any other Lender and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit and legal decisions in taking or not taking action under the Agreement.
3. Representations and Warranties. Dura hereby represents and warrants
to the Agent and the Lenders, including the Tranche C Term 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 Dura of
this Supplement, and the performance by Dura of this Supplement and the
Agreement, as amended hereby, are within the corporate powers of Dura
and have been duly authorized by all necessary corporate action on the
part of Dura. This Supplement and the Agreement, as amended hereby, are
valid and legally binding obligations of Dura, 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.
-3-
(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.
4. Effect of Supplement. Except as expressly amended and modified by
this Supplement, all provisions of the Agreement shall remain in full force and
effect; and Dura confirms and reaffirms its Obligations under the Agreement as
amended by this Supplement. After this Supplement 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 Supplement. This
Supplement shall not be deemed to expressly or impliedly waive, amend or
supplement any provision of the Agreement other than as set forth herein.
5. Counterparts. This Supplement 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
Supplement.
6. Governing Law. This Supplement 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.
7. Section Headings. The various headings of this Supplement are
inserted for convenience only and shall not affect the meaning or interpretation
of this Supplement or the Agreement or any provision hereof or thereof.
[signature pages begin on next page]
-4-
IN WITNESS WHEREOF, the parties have executed this Supplement as of the
date first above written.
DURA OPERATING CORP.
By: /s/ DAVID R. BOVEE
------------------------
Title: VICE PRESIDENT & CFO
---------------------
S-1
BANK OF AMERICA, N.A., as Agent
By: /s/ DAVID PRICE
------------------
Title: VICE PRESIDENT
---------------
TRANCHE C TERM LENDERS
BANK OF AMERICA, N.A., as a Tranche C
Term Lender
By: /s/ EDWARD HARMON
------------------
Title: VICE PRESIDENT
---------------
S-2
SCHEDULE 2.1
TO TRANCHE C TERM LOAN SUPPLEMENT
TRANCHE C TERM LENDER TRANCHE C TERM LOAN
Bank of America, N.A. U.S.$150,000,000
SCHEDULE 2.3
TO TRANCHE C TERM LOAN SUPPLEMENT
Scheduled Amortization of Tranche C Term Loans
<Table>
<Caption>
Payment Date Principal Amount to be Repaid
(as a percentage of the original
Tranche C Term Loan)
09/30/2002 0.25%
12/31/2002 0.25%
03/31/2003 0.25%
06/30/2003 0.25%
09/30/2003 0.25%
12/31/2003 0.25%
03/31/2004 0.25%
06/30/2004 0.25%
09/30/2004 0.25%
12/31/2004 0.25%
03/31/2005 0.25%
06/30/2005 0.25%
09/30/2005 0.25%
12/31/2005 0.25%
03/31/2006 0.25%
06/30/2006 0.25%
09/30/2006 0.25%
12/31/2006 0.25%
03/31/2007 0.25%
06/30/2007 0.25%
09/30/2007 0.25%
12/31/2007 0.25%
03/31/2008 23.625%
06/30/2008 23.625%
09/30/2008 23.625%
12/31/2008 23.625%
-------
100.00%
=======
</Table>