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AMENDED AND RESTATED
CREDIT AGREEMENT
Dated as of March 19, 1999
among
DURA AUTOMOTIVE SYSTEMS, INC.,
as Parent Guarantor,
DURA OPERATING CORP.,
DURA AUTOMOTIVE SYSTEMS (EUROPE) GMBH,
DURA ASIA-PACIFIC PTY LIMITED ACN 004 884 539
and
DURA AUTOMOTIVE SYSTEMS (CANADA), LTD.,
as Dura Borrowers,
TRIDENT AUTOMOTIVE PLC,
DURA AUTOMOTIVE SYSTEMS LIMITED,
SPICEBRIGHT LIMITED,
DURA AUTOMOTIVE SYSTEMS CABLE OPERATIONS INC.,
DURA AUTOMOTIVE SYSTEMS CABLE OPERATIONS CANADA, INC.
and
MOBLAN INVESTMENTS B.V.,
as Trident Borrowers,
DURA AUTOMOTIVE ACQUISITION LIMITED,
as the initial Adwest Borrower,
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as Agent,
BA AUSTRALIA LIMITED,
as Australian Lender,
BANK OF AMERICA CANADA,
as Canadian Lender,
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as Swing Line Lender and
Issuing Lender,
and
THE OTHER FINANCIAL INSTITUTIONS PARTY HERETO
NATIONSBANC MONTGOMERY SECURITIES LLC,
as Lead Arranger and Book Manager
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TABLE OF CONTENTS
Section Page
ARTICLE I
DEFINITIONS
1.1 Certain Defined Terms...................................................3
1.2 Other Interpretive Provisions..........................................47
1.3 Accounting Principles..................................................48
1.4 Currency Equivalents Generally.........................................48
1.5 Principle of Deemed Reinvestment.......................................48
1.6 Euro...................................................................49
1.7 Financial Covenants....................................................51
ARTICLE II
THE CREDITS
2.1 Amounts and Terms of Commitments.......................................51
2.2 Loan Accounts..........................................................55
2.3 Procedure for Group Borrowings.........................................56
2.4 Conversion and Continuation Elections for Group Borrowings.............57
2.5 Utilization of Commitments in Offshore Currencies......................59
2.6 Currency Exchange Fluctuations.........................................61
2.7 Reduction or Termination of Commitments................................61
2.8 Prepayments............................................................62
2.9 Repayment..............................................................64
2.10 Interest...............................................................65
2.11 Fees...................................................................67
(a) Arrangement, Agency Fees.....................................67
(b) Commitment Fees..............................................67
2.12 Computation of Fees and Interest.......................................68
2.13 Payments by the Borrowers..............................................68
2.14 Payments by the Lenders to the Agent...................................70
2.15 Proration of Payments..................................................71
ARTICLE III
SWING LINE LOANS
3.1 Swing Line Commitment..................................................71
3.2 Borrowing Procedures for Swing Line Loans..............................72
3.3 Refunding of Swing Line Loans..........................................73
3.4 Participations in Swing Line Loans.....................................73
3.5 Swing Line Participation Obligations Unconditional.....................74
3.6 Conditions to Swing Line Loans.........................................74
ARTICLE IV
AUSTRALIAN LOANS
4.1 Dura Australian Borrowings.............................................75
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4.2 Procedure for Dura Australian Borrowings...............................75
4.3 Conversion and Continuation Elections for Dura Australian
Borrowings.............................................................76
4.4 Prepayments of Australian Loans........................................78
4.5 Participations in Australian Loans.....................................78
ARTICLE V
CANADIAN LOANS
5.1 Canadian Borrowings....................................................80
5.2 Procedure for Canadian Borrowings......................................80
5.3 Conversion and Continuation Elections for Canadian Borrowings..........81
5.4 Prepayments of Canadian Loans..........................................83
5.5 Participations in Canadian Loans.......................................84
ARTICLE VI
THE LETTERS OF CREDIT
6.1 The Letter of Credit Subfacility.......................................85
6.2 Issuance, Amendment and Renewal of Letters of Credit...................87
6.3 Participations, Drawings and Reimbursements............................90
6.4 Repayment of Participations............................................91
6.5 Role of the Issuing Lender.............................................92
6.6 Obligations Absolute...................................................93
6.7 Cash Collateral Pledge.................................................94
6.8 Letter of Credit Fees..................................................94
6.9 Uniform Customs and Practice...........................................95
6.10 Letters of Credit for the Account of Subsidiaries......................95
ARTICLE VII
TAXES, YIELD PROTECTION AND ILLEGALITY
7.1 Taxes..................................................................95
7.2 Illegality............................................................102
7.3 Increased Costs and Reduction of Return...............................103
7.4 Funding Losses........................................................103
7.5 Inability to Determine Rates..........................................105
7.6 Reserves on Offshore Rate Loans.......................................107
7.7 Certificates of Lenders...............................................107
7.8 Substitution of Lenders...............................................108
7.9 Right of Lenders to Fund through Branches and Affiliates..............108
7.10 Survival..............................................................108
ARTICLE VIII
CONDITIONS PRECEDENT
8.1 Conditions to Effective Date..........................................108
(a) Credit Agreement and Notes..................................109
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(b) Resolutions; Incumbencies...................................109
(c) Organization Documents; Good Standing.......................109
(d) Guaranties..................................................110
(e) Collateral Documents........................................110
(f) Certificate.................................................110
(g) Legal Opinions..............................................110
(h) Other Documents.............................................110
(i) Corporate Structure.........................................111
8.2 Conditions to Adwest Acquisition Loans and Refinancing Credit
Extensions............................................................111
8.3 Conditions to Credit Extensions on Excel Closing Date.................112
(a) Resolutions; Incumbencies...................................113
(b) Organization Documents; Good Standing.......................113
(c) Guaranties..................................................113
(d) Collateral Documents........................................113
(e) Excel Acquisition Documents.................................113
(f) Payment of Fees.............................................113
(g) Certificate.................................................114
(h) Legal Opinions..............................................114
(i) Environmental Reports.......................................114
(j) Other Documents.............................................114
8.4 Conditions to All Non-Adwest Acquisition Credit Extensions............114
(a) Notice, Application.........................................114
(b) Continuation of Representations and Warranties..............115
(c) No Existing Default.........................................115
ARTICLE IX
REPRESENTATIONS AND WARRANTIES
9.1 Corporate Existence and Power.........................................115
9.2 Authorization; No Contravention.......................................116
9.3 Governmental Authorization............................................116
9.4 Binding Effect........................................................116
9.5 Litigation............................................................116
9.6 No Default............................................................117
9.7 ERISA Compliance......................................................117
9.8 Use of Proceeds; Margin Regulations...................................118
9.9 Title to Properties...................................................118
9.10 Taxes.................................................................118
9.11 Financial Condition...................................................118
9.12 Environmental Matters.................................................120
9.13 Regulated Entities....................................................120
9.14 No Burdensome Restrictions............................................120
9.15 Copyrights, Patents, Trademarks and Licenses, etc.....................120
9.16 Subsidiaries..........................................................120
9.17 Insurance.............................................................121
9.18 Accuracy of Information...............................................121
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9.19 Adwest Acquisition....................................................121
9.20 Excel Acquisition.....................................................122
9.21 Year 2000.............................................................122
ARTICLE X
AFFIRMATIVE COVENANTS
10.1 Financial Statements..................................................123
10.2 Certificates; Other Information.......................................124
10.3 Notices...............................................................125
10.4 Preservation of Corporate Existence, Etc..............................126
10.5 Maintenance of Property...............................................126
10.6 Insurance.............................................................126
10.7 Payment of Obligations................................................126
10.8 Compliance with Laws..................................................127
10.9 Compliance with ERISA.................................................127
10.10 Inspection of Property and Books and Records..........................127
10.11 Environmental Laws....................................................127
10.12 Use of Proceeds.......................................................128
10.13 Further Assurances....................................................128
10.14 Security..............................................................128
10.15 Interest Rate Protection..............................................129
10.16 Undertakings Relating to the Conduct of the Adwest Offer..............129
10.17 Undertakings Relating to the Conduct of Adwest and its
Subsidiaries after the Adwest Success Date............................130
10.18 Change of Control Effecting Indebtedness of Adwest....................132
ARTICLE XI
NEGATIVE COVENANTS
11.1 Limitation on Liens...................................................132
11.2 Disposition of Assets.................................................134
11.3 Consolidations and Mergers............................................135
11.4 Loans and Investments.................................................136
11.5 Limitation on Indebtedness............................................137
11.6 Transactions with Affiliates..........................................138
11.7 Use of Proceeds.......................................................138
11.8 Contingent Obligations................................................139
11.9 Restrictions on Subsidiaries..........................................140
11.10 Fixed Charge Coverage Ratio...........................................140
11.11 Net Worth.............................................................140
11.12 Senior Leverage Ratio.................................................141
11.13 Total Debt to EBITDA Ratio............................................141
11.14 Restricted Payments...................................................141
11.15 ERISA.................................................................142
11.16 Change in Business....................................................143
11.17 Accounting Changes....................................................143
11.18 Amendments to Other Documents.........................................143
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11.19 Trust Preferred Stock Transaction.....................................143
ARTICLE XII
EVENTS OF DEFAULT
12.1 Event of Default......................................................143
(a) Non-Payment.................................................143
(b) Representation or Warranty..................................143
(c) Specific Defaults...........................................143
(d) Other Defaults..............................................144
(e) Cross-Default...............................................144
(f) Insolvency; Voluntary Proceedings...........................144
(g) Involuntary Proceedings.....................................144
(h) ERISA.......................................................145
(i) Monetary Judgments..........................................145
(j) Non-Monetary Judgments......................................145
(k) Guaranties; Collateral Documents............................145
(l) Change in Control...........................................146
12.2 Remedies..............................................................146
12.3 Rights Not Exclusive..................................................147
12.4 Adwest Acquisition Loans..............................................147
ARTICLE XIII
THE AGENT
13.1 Appointment and Authorization.........................................147
13.2 Delegation of Duties..................................................148
13.3 Liability of Agent....................................................148
13.4 Reliance by Agent.....................................................149
13.5 Notice of Default.....................................................149
13.6 Credit Decision.......................................................150
13.7 Indemnification of Agent..............................................150
13.8 Agent in Individual Capacity..........................................151
13.9 Successor Agent.......................................................151
13.10 Withholding Tax.......................................................152
13.11 Collateral Matters....................................................153
13.12 Co-Agents.............................................................153
ARTICLE XIV
MISCELLANEOUS
14.1 Amendments and Waivers................................................154
14.2 Notices...............................................................155
14.3 No Waiver; Cumulative Remedies........................................156
14.4 Costs and Expenses....................................................156
14.5 Borrower Indemnification..............................................157
14.6 Payments Set Aside....................................................158
14.7 Successors and Assigns................................................159
14.8 Assignments, Participations, etc......................................159
14.9 Confidentiality.......................................................162
14.10 Set-off...............................................................163
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14.11 Automatic Debits of Fees..............................................163
14.12 Notification of Addresses, Lending Offices, etc.......................163
14.13 Counterparts..........................................................163
14.14 Severability..........................................................163
14.15 No Third Parties Benefited............................................164
14.16 Governing Law and Jurisdiction........................................164
14.17 Waiver of Jury Trial..................................................164
14.18 Judgment..............................................................165
14.19 Entire Agreement......................................................165
14.20 Amendment and Restatement.............................................166
14.21 Additional Borrowers..................................................166
14.22 Limitation............................................................166
14.23 Post-Closing Matters..................................................167
14.24 Deed..................................................................167
SCHEDULES
Schedule 1.1 Pricing Schedule
Schedule 2.1 Commitments
Schedule 2.1(d) Total Borrower Revolving Outstandings Limits
Schedule 2.9 Amortization of Term Loans
Schedule 6.1 Existing Letters of Credit
Schedule 7.6 Associated Costs Rate
Schedule 8.1 Existing Guaranties and Collateral Documents
Schedule 8.1(d) Guaranties
Schedule 8.1(e) Collateral Documents
Schedule 8.1(f) Trident Acquisition Documents
Schedule 8.2 Initial Adwest Closing Documents
Schedule 8.2A Adwest Debt to be Repaid
Schedule 8.3A Excel Debt to be Repaid
Schedule 9.5 Litigation
Schedule 9.7 ERISA
Schedule 9.9 Excluded Property; Post-Closing Matters
Schedule 9.12 Environmental Matters
Schedule 9.16 Subsidiaries; Investments
Schedule 10.17 Additional Adwest Closing Documents
Schedule 11.1 Liens
Schedule 11.4(j) Investments
Schedule 11.5 Indebtedness
Schedule 11.8 Contingent Obligations
Schedule 14.2 Offshore and Domestic Lending Offices;
Addresses for Notices
EXHIBITS
Exhibit A-1 Form of Notice of Group Borrowing
Exhibit A-2 Form of Notice of Australian Borrowing
Exhibit A-3 Form of Notice of Canadian Borrowing
Exhibit A-4 Form of Request for Swing Line Loan
Exhibit B-1 Form of Notice of Conversion/Continuation
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Exhibit B-2 Form of Notice of Conversion/Continuation (Australian)
Exhibit B-3 Form of Notice of Conversion/Continuation (Canadian)
Exhibit C Form of Compliance Certificate
Exhibit D Form of Guaranty
Exhibit E Form of Joinder Agreement
Exhibit F Form of Note
Exhibit G-1 Form of Opinions of U.S. Counsel
Exhibit G-2 Form of Opinion of Australian Counsel
Exhibit G-3 Form of Opinion of Canadian Counsel
Exhibit G-4 Form of Opinion of German Counsel
Exhibit G-5 Form of Opinion of Netherlands Counsel
Exhibit G-6 Form of Opinion of English Counsel
Exhibit H Form of Assignment and Acceptance
Exhibit I Form of Lender Certificate
Exhibit J Form of Designation of Other Qualified Secured Agreement
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AMENDED AND RESTATED CREDIT AGREEMENT
This AMENDED AND RESTATED CREDIT AGREEMENT is entered into as of March 19,
1999, among
(i) DURA AUTOMOTIVE SYSTEMS, INC., a corporation organized under the
laws of the State of Delaware ("DASI"),
(ii) DURA OPERATING CORP., a corporation organized under the laws of
the State of Delaware ("Dura"), DURA AUTOMOTIVE SYSTEMS (EUROPE) GMBH
(formerly known as Kimanus Vermogensverwaltung GmbH), a company organized
under the laws of the Federal Republic of Germany (the "Dura German
Borrower"), DURA ASIA-PACIFIC PTY LIMITED ACN 004 884 539, a company
organized under the laws of the State of Victoria (the "Dura Australian
Borrower"), and DURA AUTOMOTIVE SYSTEMS (CANADA), LTD., a corporation
organized under the laws of Ontario (the "Dura Canadian Borrower" and
together with Dura, the Dura German Borrower, the Dura Australian
Borrower, the New UK Borrower (as hereinafter defined) and such other
Non-Trident Subsidiaries that may from time to time become party to this
Agreement as Dura Borrowers pursuant to Section 14.21, the "Dura
Borrowers"),
(iii) TRIDENT AUTOMOTIVE PLC, a company incorporated under the laws
of England and Wales ("Trident"), DURA AUTOMOTIVE SYSTEMS LIMITED
(formerly known as Trident Automotive (UK) Limited), a company
incorporated under the laws of England and Wales ("Trident UK"),
SPICEBRIGHT LIMITED, a company incorporated under the laws of England and
Wales ("Spicebright"), DURA AUTOMOTIVE SYSTEMS CABLE OPERATIONS INC.
(formerly known as Trident Automotive, Inc.), a corporation organized
under the laws of the State of Delaware ("Trident US"), DURA AUTOMOTIVE
SYSTEMS CABLE OPERATIONS CANADA, INC. (formerly know as Trident Automotive
Canada Inc.), a corporation organized under the laws of Ontario (the
"Trident Canadian Borrower"), and MOBLAN INVESTMENTS B.V., a company
organized under the laws of The Netherlands ("Moblan" and together with
Trident, Trident UK, Spicebright, Trident US, the Trident Canadian
Borrower and such other Trident Subsidiaries that may from time to time
become party to this Agreement as Trident Borrowers pursuant to Section
14.21, the "Trident Borrowers"),
(iv) DURA AUTOMOTIVE ACQUISITION LIMITED, a limited company
incorporated under the laws of England and Wales (the "New UK Borrower"),
(v) effective upon consummation of the Adwest Acquisition and their
joinder hereto pursuant to Section
14.21, ADWEST AUTOMOTIVE PLC, a public limited company incorporated under
the laws of England and Wales ("Adwest"), ADWEST FRANCE S.A., a company
organized under the laws of France, and ADWEST HEIDEMANN GRUPPE GMBH & CO.
KG, a company organized under the laws of Federal Republic of Germany, and
(vii) the several financial institutions from time to time party to
this Agreement (collectively the "Lenders"; individually each a "Lender"),
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, as Swing Line
Lender, BA AUSTRALIA LIMITED, as Australian Lender as provided herein,
BANK OF AMERICA CANADA, as Canadian Lender as provided herein, and BANK OF
AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, as Agent as provided
herein.
W I T N E S S E T H:
WHEREAS, subject to the terms and conditions of this Agreement, to finance
the Adwest Acquisition and the Excel Acquisition, to amend and restate or
refinance certain existing Indebtedness of Dura, Trident, Adwest, Excel and
their respective Subsidiaries and to fund general corporate purposes of Dura,
Trident, Adwest, Excel and their respective Subsidiaries,
(i) the Lenders and the Borrowers have agreed to amend and restate
the Consolidated, Amended and Restated Credit Agreement dated as of April
30, 1998 (as amended from time to time, including, if applicable, by
restatement under the Bridge Credit Agreement, the "Existing Credit
Agreement") among DASI, the Borrowers (other than the Adwest Borrowers),
various financial institutions, and Bank of America National Trust and
Savings Association, as Agent, in the form of this Agreement effective as
of the initial Closing Date;
(ii) certain Lenders have agreed to make available to the Borrowers
during the period from the initial Closing Date to the Revolving
Commitment Termination Date, a revolving multicurrency credit facility
with a letter of credit subfacility from the Issuing Lender and a swing
line loan subfacility from the Swing Line Lender, the Canadian Lender has
agreed to make available to the Canadian Borrowers a Canadian dollar and
U.S. dollar credit facility (which facility is a subfacility of the
Revolving Facility), and the Australian Lender has agreed to make
available to the Dura Australian Borrower an Australian dollar and U.S.
dollar credit facility (which facility is a subfacility of the Revolving
Facility); and
(iii) the applicable Lenders have agreed to make (A) Interim Term
Loans on the Adwest Closing Date and the Excel Closing Date to Dura, (B)
Tranche A Term Loans on the
2
initial Closing Date and on up to three additional Tranche A Term Loan
Disbursement Dates to Dura, the Dura German Borrower, Trident, the New UK
Borrower, Adwest France S.A. and Adwest Heidemann Gruppe GmbH & Co. KG and
(C) Tranche B Term Loans on the Adwest Closing Date and the Excel Closing
Date to Dura.
NOW, THEREFORE, in consideration of the mutual agreements, provisions and
covenants contained herein, the parties agree as follows (each Adwest Borrower
other than the New UK Borrower becoming a party hereto upon consummation of the
Adwest Acquisition and delivery of its Joinder Agreement):
ARTICLE I
DEFINITIONS
1.1 Certain Defined Terms. The following terms have the following
meanings:
Acquisition means any transaction or series of related transactions
for the purpose of or resulting, directly or indirectly, in (a) the
acquisition of all or substantially all of the assets of a Person, or of
any business or division of a Person, (b) the acquisition of in excess of
50% of the capital stock, partnership interests, membership interests or
equity of any Person, or otherwise causing any Person to become a
Subsidiary, or (c) a merger or consolidation or any other combination with
another Person (other than a Person that is a Subsidiary) provided that
DASI or a Subsidiary is the surviving entity.
Adjusted Working Capital means the remainder of:
(a) (i) the consolidated current assets of DASI and its
Subsidiaries, less (ii) the amount of cash and cash equivalents
included in such consolidated current assets;
less
(b) (i) consolidated current liabilities of DASI and its
Subsidiaries, less (ii) the amount of short-term Indebtedness
(including current maturities of long-term Indebtedness) of DASI and
its Subsidiaries included in such consolidated current liabilities.
Adwest means Adwest Automotive PLC, a public limited company
incorporated under the laws of England and Wales
3
with registered number 490897 and having its registered office at Woodley,
Reading, Berkshire, RG5 4SN, England.
Adwest Acquisition means the acquisition by the New UK Borrower of
the Adwest Shares pursuant to the Adwest Offer or pursuant to the
procedures under Sections 428 to 430F of the U.K. Companies Act 1985 as a
result of the Adwest Offer.
Adwest Acquisition Commitment Termination Date means the earlier of
(a) August 1, 1999, and (b) the date on which the Adwest Offer is
withdrawn, lapses or is otherwise terminated.
Adwest Acquisition Documents means, at any time, each of the Adwest
Announcement and the Adwest Offer Document as each of the same may be
varied, revised, amended or supplemented with the prior written consent of
the Required Lenders, to the extent such consent is required in accordance
with the remaining provisions of this Agreement.
Adwest Acquisition Loan means any Loan (which may be a Term Loan or
a Revolving Loan) the proceeds of which are used (i) by the New UK
Borrower to pay consideration for Adwest Shares acquired pursuant to the
Adwest Offer or to pay Adwest Debt to be Repaid, or (ii) by Dura to pay to
the New UK Borrower (as a loan or capital contribution), which proceeds in
turn are used by the New UK Borrower to pay consideration for Adwest
Shares acquired pursuant to the Adwest Offer or to pay Adwest Debt to be
Repaid.
Adwest Announcement means the initial press announcement released or
to be released by or on behalf of the New UK Borrower in connection with
the Adwest Offer.
Adwest Borrowers means initially the New UK Borrower and, effective
upon the consummation of the Adwest Acquisition and their respective
joinder to this Agreement as Borrowers pursuant to Sections 10.17 and
14.21, Adwest, Adwest France S.A. and Adwest Heidemann Gruppe GmbH & Co.
KG.
Adwest Closing Date means the date (not later than the Adwest
Acquisition Commitment Termination Date) on which all conditions precedent
set forth in Section 8.2 are satisfied or waived by all Lenders.
Adwest Debt to be Repaid means Indebtedness of Adwest, and/or its
Subsidiaries listed on Schedule 8.2A.
Adwest Group means the New UK Borrower and its Subsidiaries, and
Adwest and its Subsidiaries.
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Adwest Loan Party means the New UK Borrower and, upon its joinder
hereto as a Borrower pursuant to Section 14.21 or its provision of a
Guaranty pursuant to Sections 10.14 and 10.17, any other member of the
Adwest Group.
Adwest Offer means, at any time, the recommended cash offer made by
the New UK Borrower to the shareholders of Adwest on the terms and
conditions of the Adwest Offer Document to acquire the Adwest Ordinary
Shares at the Adwest Offer Price (as the same may be amended from time to
time).
Adwest Offer Document means the document issued on January 29, 1999
by or on behalf of the New UK Borrower setting out the terms and
conditions of the Adwest Offer.
Adwest Offer Price means (pound)1.50 per Adwest Ordinary Share or
any permitted variation thereto.
Adwest Ordinary Shares means the existing unconditionally allotted
or issued and fully paid ordinary shares of 25p each in the capital of
Adwest and any further shares which are unconditionally allotted or issued
prior to the date on which the Adwest Offer closes (or such earlier date
or dates, not being earlier than the date on which the Adwest Offer
becomes unconditional as to acceptances or, if later, the final closing
date of the Adwest Offer, as the New UK Borrower may decide) and Adwest
Ordinary Share shall be construed accordingly.
Adwest Shares means all of the Adwest Ordinary Shares actually
acquired by the New UK Borrower as a result of the Adwest Offer or
pursuant to the procedures under Sections 428 to 430F of the U.K.
Companies Act 1985 as a result of the Adwest Offer.
Adwest Success Date means the date on which all the conditions of
the Adwest Offer have been fulfilled or waived (if waived, with the prior
written approval of the Required Lenders to the extent such approval is
required in accordance with the remaining provisions of this Agreement)
and the Adwest Offer becomes or is declared wholly unconditional in all
respects.
Affected Lender - see Section 7.8.
Affiliate means, as to any Person, any other Person which, directly
or indirectly, is in control of, is controlled by, or is under common
control with such Person. A Person shall be deemed to control another
Person if the controlling Person possesses, directly or indirectly, the
power to direct or cause the direction of the management and
5
policies of such other Person, whether through the ownership of voting
securities or membership interests, by contract, or otherwise.
Agent means Bank of America in its capacity as agent hereunder and
under the other Loan Documents, as provided in Article XIII, and any
successor Agent arising under Section 13.9.
Agent-Related Persons means the Agent and any successor thereto in
such capacity hereunder, together with their respective Affiliates
(including the Arranger), and the officers, directors, trustees,
employees, agents and attorneys-in-fact of such Persons and Affiliates.
Agreed Alternative Currency - see subsection 2.5(e).
Agreement means this Amended and Restated Credit Agreement.
Applicable Currency means, as to any particular payment or Loan,
U.S. Dollars, Australian Dollars, Canadian Dollars or the Offshore
Currency in which it is denominated or is payable.
Applicable Margin means the applicable rate per annum set forth
under the heading "Applicable Margin" on Schedule 1.1.
Arranger means NationsBanc Montgomery Securities LLC.
Assignee - see subsection 14.8(a).
Attorney Costs means and includes all reasonable fees and
disbursements of any law firm or other external counsel, the allocated (or
recorded) cost of internal legal services and all disbursements of
internal counsel; provided that with respect to any particular matter
related to the negotiation and documentation of the transaction
contemplated by this Agreement or any amendment or modification hereof,
Attorney Costs will be limited to either the fees and disbursements of any
external counsel or the fees and disbursements of internal counsel.
Australian Bank Bill Rate means, with respect to any Interest Period
for an Australian Bank Bill Rate Loan:
(a) the rate determined by the Australian Lender to be the
average buying rate (rounded up, if necessary, to the nearest four
decimal places) displayed at or about 11:00 a.m. (Sydney time) on
the
6
first day of such Interest Period on the Reuters screen BBSY page
for a term equivalent to such Interest Period; or
(b) if (i) for any reason there is no rate displayed for a
period equivalent to such Interest Period; or (ii) the basis of
calculation of such rate is changed after the date hereof and in the
reasonable opinion of the Australian Lender it ceases to reflect the
Australian Lender's cost of funding to the same extent as of the
date of this Agreement, then the Australian Bank Bill Rate will be
the rate determined by the Australian Lender to be the average of
the buying rates quoted to the Australian Lender by each of three
Australian banks selected by the Australian Lender at or about that
time on that date. The buying rates must be for bills of exchange
which are accepted by an Australian bank selected by the Australian
Lender and which have a term equivalent to such Interest Period.
Australian Bank Bill Rate Loan means any Australian Loan which bears
interest at a rate determined by reference to the Australian Bank Bill
Rate.
Australian Bank Bill Rate Office means, with respect to the
Australian Lender, the office or offices of such Person which shall be
making or maintaining the Australian Bill Rate Loans of such Person
hereunder or such other office or offices through which such Person
determines the Australian Bank Bill Rate.
Australian Borrowing means a Borrowing hereunder consisting of
Australian Loans made by the Australian Lender.
Australian Dollars and A$ each mean lawful money of Australia.
Australian Dura Commitment means the commitment of the Australian
Lender to make Australian Loans to the Dura Australian Borrower pursuant
to Section 4.2; it being understood that the Australian Dura Commitment is
a part of the combined Revolving Commitments, rather than a separate,
independent commitment.
Australian Floating Rate Loan means an Australian Loan which bears
interest at a rate determined by reference to the Australian Overnight
Rate.
7
Australian Lender means BA Australia Limited in its capacity as
Australian Lender hereunder and any successor thereto in such capacity.
The Australian Lender is an Affiliate of Bank of America, and Bank of
America is the "primary Lender" for the Australian Lender.
Australian Loan - see Section 4.1.
Australian Loans Sublimit means U.S.$4,000,000, as such amount may
be reduced or increased from time to time in integral multiples of
U.S.$1,000,000 effective four Business Days after written notice of such
reduction or increase is given by DASI to the Agent and the Australian
Lender, provided that after giving effect to such reduction or increase,
(x) the Australian Loans Sublimit shall not exceed U.S.$4,000,000 and (y)
the Australian Loans Sublimit shall not be less than the then aggregate
principal Dollar Equivalent amount of all outstanding Australian Loans.
Australian Overnight Rate means, with respect to any amount in
Australian Dollars, for any day, the rate of interest per annum equal to
the higher of: (i) the rate of interest per annum at which overnight
deposits in such Australian Dollars, in an amount approximately equal to
the amount with respect to which such rate is being determined, would be
offered for such day by Bank of America's Sydney Branch to major banks in
the Sydney or other applicable offshore interbank market, and (ii) the
cost of funds to Bank of America's Sydney Branch with respect to such
amount for such day, expressed as a rate of interest per annum.
Australian Participation Funding Notice means a written notice from
the Australian Lender informing the Agent that an Event of Default has
occurred and is continuing and directing the Agent to notify all Revolving
Lenders (other than the Australian Lender) to fund their participations in
the Australian Loans as provided in Section 4.5.
Australian U.S. Dollar Loan means any Australian Loan denominated in
U.S. Dollars.
BACAN means Bank of America Canada, a bank chartered under the laws
of Canada.
BACAN U.S. Base Rate means, on any date and with respect to all
Canadian U.S. Dollar Base Rate Loans, a fluctuating rate of interest per
annum (expressed on the basis of a year of 360 days) equal to the higher
of (a) the rate of interest in effect for such day as publicly announced
by BACAN as its "base rate" for U.S. Dollar loans
8
made in Canada; and (b) the Federal Funds Rate in effect on that date
determined by BACAN plus 0.50%.
Bank of America means Bank of America National Trust and Savings
Association, a national banking association.
Bank of Canada Rate means the overnight rate established by the
Canadian Lender based on its customary practice.
Bankruptcy Code means the Federal Bankruptcy Reform Act of 1978 (11
U.S.C. ss.101, et seq.).
Beneficial Owner shall have the meaning assigned thereto in Rule
13d-3 of the SEC under the Exchange Act as in effect on the date hereof.
Borrowers means the Dura Borrowers (including the Adwest Borrowers)
and the Trident Borrowers; and Borrower means any Dura Borrower or any
Trident Borrower, as applicable.
Borrowing means a borrowing hereunder consisting of Loans of the
same Facility and Type and in the same Applicable Currency made to a
Borrower on the same day by one or more Lenders under Articles II, III, V,
IV or VI and, other than in the case of Floating Rate Loans, having the
same Interest Period. A Borrowing may be a Group Borrowing, a Swing Line
Loan, an Australian Borrowing or a Canadian Borrowing.
Borrowing Date means any date on which a Borrowing occurs under
Section 2.3, 3.2, 4.2 or 5.2.
Bridge Credit Agreement means the Bridge Credit Agreement dated as
of January 24, 1999 between Bank of America, DASI, the Dura Borrowers, the
Trident Borrowers and the New UK Borrower.
Business Day means any day other than a Saturday, Sunday or other
day on which commercial banks in New York City, Chicago, San Francisco or
Charlotte (and in the case of disbursements, payments and calculations in
respect of(x) any Offshore Currency, in London, England and the city where
the applicable Payment Office is located, (y) Australian Loans, in Sydney,
Australia, or (z) Canadian Dollars, in Toronto, Canada) are authorized or
required by law to close and
(i) with respect to disbursements and payments in and
calculations pertaining to U.S. Dollars relating to
9
Offshore Rate Loans or Canadian U.S. Dollar Offshore Rate Loans or
Canadian Dollars relating to Offshore Canadian Loans, a day on which
dealings are carried on in the applicable offshore U.S. Dollar or
Canadian Dollar interbank market,
(ii) with respect to disbursements and payments in and
calculations pertaining to any Offshore Currency relating to
Offshore Rate Loans, a day on which commercial banks are open for
foreign exchange business in London, England, and on which dealings
in the relevant Offshore Currency are carried on in the applicable
offshore foreign exchange interbank market in which disbursement of
or payment in such Offshore Currency will be made or received
hereunder,
(iii) with respect to dates for the payment or purchase of any
amount denominated in the Euro Unit or the National Currency Unit of
a Participating Member State, a day which is a TARGET Business Day,
(iv) with respect to the giving and receiving of notices
hereunder for Offshore Currency Loans denominated in the Euro Unit
or a National Currency Unit of a Participating Member State, a day
which is a TARGET Business Day on which banks are generally open for
business in London, New York City and Frankfurt and in any other
principal financial center as the Agent shall from time to time
determine for this purpose.
Canadian Borrowers means the Dura Canadian Borrower and the Trident
Canadian Borrower, and Canadian Borrower means either of the Dura Canadian
Borrower or the Trident Canadian Borrower.
Canadian Borrowing means a Borrowing hereunder consisting of
Canadian Loans made by the Canadian Lender.
Canadian Dollars and C$ each mean lawful money of Canada.
Canadian Dura Commitment means the commitment of the Canadian Lender
to make Canadian Loans to the Dura Canadian Borrower pursuant to Section
5.1; it being understood that the Canadian Dura Commitment is a part of
the combined Revolving Commitments, rather than a separate, independent
commitment.
Canadian Lender means BACAN in its capacity as Canadian Lender
hereunder and any successor thereto in such capacity. The Canadian Lender
is an Affiliate of Bank of America, and
10
Bank of America is the "primary Lender" for the Canadian Lender.
Canadian Loan - see Section 5.1.
Canadian Offshore Rate means, with respect to any Interest Period
for an Offshore Canadian Loan, the rate of interest per annum determined
by the Canadian Lender to be the rate of interest per annum for deposits
in Canadian Dollars for a period equal to such Interest Period quoted on
Dow Jones Markets (Telerate) page 3740, at or about 11:00 a.m. (London
time) on the second Business Day before the commencement of such Interest
Period. If no such quotations are available, the Canadian Offshore Rate
shall be determined by the Canadian Lender, to be the arithmetic mean,
rounded upward if necessary, to the nearest 1/16th of one percent, of the
rates of interest per annum at which deposits in Canadian Dollars in an
amount approximately equal to the aggregate amount of such Offshore
Canadian Loan, and having a maturity equal to such Interest Period are
offered to Bank of America in the London interbank market at or about
11:00 a.m. (London time) on the second Business Day before the
commencement of such Interest Period.
Canadian Participation Funding Notice means a written notice from
the Canadian Lender informing the Agent that an Event of Default has
occurred and is continuing and directing the Agent to notify all Revolving
Lenders (other than the Canadian Lender) to fund their participations in
the Canadian Loans as provided in Section 5.5.
Canadian Prime Rate means, for any day, the per annum rate of
interest in effect for such day as publicly announced from time to time by
BACAN in Toronto, Ontario as its "prime rate." (The "prime rate" is a rate
set by BACAN based upon various factors including BACAN's costs and
desired return, general economic conditions and other factors, and is used
as a reference point for pricing some loans, which may be priced at, above
or below such announced rate.) Any change in the prime rate announced by
BACAN shall take effect at the opening of business on the day specified in
the public announcement of such change.
Canadian Prime Rate Loan means a Canadian Loan that bears interest
based on the Canadian Prime Rate.
Canadian Trident Commitment means the commitment of the Canadian
Lender to make Canadian Loans to the Trident Canadian Borrower pursuant to
Section 5.1; it being understood that the Canadian Trident Commitment is a
part of
11
the combined Revolving Commitments, rather than a separate, independent
commitment.
Canadian U.S. Dollar Base Rate Loan means any Canadian U.S. Dollar
Loan that bears interest based on the BACAN U.S. Base Rate.
Canadian U.S. Dollar Loan means any Canadian Loan denominated in
U.S. Dollars.
Canadian U.S. Dollar Offshore Rate means, with respect to any
Interest Period for a Canadian U.S. Dollar Offshore Rate Loan, the rate of
interest per annum determined by the Canadian Lender to be the rate of
interest per annum for deposits in U.S. Dollars for a period equal to such
Interest Period quoted on Dow Jones Markets (Telerate) page 3750, at or
about 11:00 a.m. (London time) on the second Business Day before the
commencement of such Interest Period. If no such quotations are available,
the Canadian U.S. Dollar Offshore Rate shall be determined by the Canadian
Lender, to be the arithmetic mean, rounded upward if necessary, to the
nearest 1/16th of one percent, of the rates of interest per annum at which
deposits in U.S. Dollars in an amount approximately equal to the aggregate
amount of such Canadian U.S. Dollar Offshore Rate Loan, and having a
maturity equal to such Interest Period are offered to Bank of America in
the London interbank market at or about 11:00 a.m. (London time) on the
second Business Day before the commencement of such Interest Period.
Canadian U.S. Dollar Offshore Rate Loan means any Canadian U.S.
Dollar Loan that bears interest based on the Canadian U.S. Dollar Offshore
Rate.
Capital Adequacy Regulation means, in respect of any Lender, any
guideline, request or directive of any central bank or other Governmental
Authority, or any other law, rule or regulation, whether or not having the
force of law, in each case, regarding capital adequacy of such Lender or
of any corporation controlling such Lender which is generally applicable
to banks or corporations controlling banks in any applicable jurisdiction
(and not applicable to such Lender or the corporation controlling such
Lender solely due to the financial or regulatory condition of such Lender
or such corporation).
Capital Expenditures means all expenditures which, in accordance
with GAAP, would be required to be capitalized and shown on the
consolidated balance sheet of DASI.
12
Cash Collateralize means to pledge and deposit with or deliver to
the Agent, for the benefit of the Agent, the Issuing Lender and the
Lenders, as collateral for the L/C Obligations, cash or deposit account
balances pursuant to documentation in form and substance reasonably
satisfactory to the Agent and the Issuing Lender (which documents are
hereby consented to by the Lenders). Derivatives of such term shall have
corresponding meanings. Each Borrower hereby grants to the Agent, for the
benefit of the Agent and the Lenders, a security interest in all such cash
and deposit account balances to secure the L/C Obligations of such
Borrower. Cash collateral shall be maintained in blocked deposit accounts
at Bank of America not subject to setoff rights in favor of Bank of
America (other than in respect of the Obligations).
Cash Equivalent Investment means (a) marketable direct obligations
issued or unconditionally guaranteed by the United States Government or
issued by any agency thereof and backed by the full faith and credit of
the United States, in each case maturing within one year from the date of
acquisition thereof; (b) commercial paper maturing no more than 270 days
from the date issued and having a rating of at least A-1 from Standard &
Poor's Ratings Group or at least P-1 from Moody's Investors Services,
Inc.; (c) certificates of deposit or bankers' acceptances maturing within
one year from the date of issuance thereof issued by, or overnight reverse
repurchase agreements from, any Lender or any other commercial bank
organized under the laws of the United States of America or any state
thereof or the District of Columbia having combined capital and surplus of
not less than $500,000,000 and not subject to setoff rights in favor of
such bank (other than in respect of Obligations); and (d) investments with
foreign governmental entities which are members of the OECD or foreign
banks organized under the laws of countries which are members of the OECD,
similar to the investments set forth in clause (a), (b) and (c) above, so
long as such foreign bank has combined capital and surplus of a Dollar
Equivalent of no less than $500,000,000.
Change in Control means any of the following events:
(a) any Person or group (within the meaning of Rule 13d-5 of the SEC
under the Exchange Act), excluding Onex DHC, L.L.C., Alkin Co. or J2R
Corporation, shall be or become the Beneficial Owner of issued and
outstanding capital stock of DASI representing 25% or more of the voting
power in elections for directors of DASI on a fully diluted basis;
13
(b) a majority of the members of the board of directors of DASI or
the board of directors of Dura shall cease to be Continuing Members; or
(c) DASI shall cease to own, directly or indirectly, 100% of the
issued and outstanding capital stock of Dura.
Charge and Memorandum of Deposit means each charge and memorandum of
deposit listed on Schedules 8.1 and 8.1(e) and each other charge and
memorandum of deposit provided by a Loan Party to the Agent hereunder
(including pursuant to Section 10.14 or 10.17).
Closing Date means the Adwest Closing Date or the Excel Closing
Date.
Code means the Internal Revenue Code of 1986.
Collateral means any collateral in which the Agent or any Lender
Party is granted a Lien by a Loan Party pursuant to a Collateral Document.
Collateral Document means each Collateral Document under the
Existing Credit Agreement, each document referred to in paragraph (e) of
Schedule 8.1, each document referred to in Section 10.17(f)(ii), each
document listed on Schedule 8.1(e), each Charge and Memorandum of Deposit,
Debenture, Pledge Agreement, Security Agreement, Mortgage and
reaffirmation thereof and other collateral documents providing for the
grant of a Lien in favor of the Agent in connection with this Agreement
(including pursuant to Section 10.14) and each amendment or supplement
thereto.
Commitment, as to each Lender, means its Interim Term Commitment,
Tranche A Term Commitment, Tranche B Term Commitment and/or Revolving
Commitment, in each case as applicable.
Commitment Fee Rate means the applicable rate set forth under the
heading "Commitment Fee Rate" in Schedule 1.1.
Compliance Certificate means a certificate substantially in the form
of Exhibit C.
Computation Date means any date on which the Agent determines the
Dollar Equivalent amount of any Australian Loans, Canadian Loans, Offshore
Currency Loans or L/C Obligations pursuant to Section 2.5(a), 3.1, 4.1(b),
5.1(b) or 6.1.
14
Computation Period means each period of four consecutive fiscal
quarters ending after March 31, 1998.
Consolidated Net Income means, for any period, the consolidated net
income (or loss) of DASI and its Subsidiaries for such period; provided
that there shall be excluded therefrom (i) the income or loss of any
Person which is not a Subsidiary (but any dividends or other distributions
received in cash by DASI or any Subsidiary from such Person shall be
included in determining Consolidated Net Income) and (ii) compensation
expense resulting from the issuance of capital stock, stock options or
stock appreciation rights issued to employees, including officers, of DASI
or any Subsidiary, or the exercise of such options or rights, in each case
to the extent the obligation (if any) associated therewith is not expected
to be settled by the payment of cash by DASI or any Affiliate of DASI.
Contingent Obligation means, as to any Person, any direct or
indirect liability of such Person, with or without recourse, (a) with
respect to any Indebtedness, lease, dividend, letter of credit or other
obligation (the "primary obligations") of another Person (the "primary
obligor"), including any obligation of such Person (i) to purchase,
repurchase or otherwise acquire such primary obligations or any security
therefor, (ii) to invest in, support or supply funds to any other Person,
or (iii) otherwise to assure or hold harmless the holder of any such
primary obligation against loss in respect thereof (each, a "Guaranty
Obligation"); (b) with respect to any Surety Instrument (other than any
Letter of Credit) issued for the account of such Person or as to which
such Person is otherwise liable for reimbursement of drawings or payments;
(c) to purchase any materials, supplies or other property from, or to
obtain the services of, another Person if the relevant contract or other
related document or obligation requires that payment for such materials,
supplies or other property, or for such services, shall be made regardless
of whether delivery of such materials, supplies or other property is ever
made or tendered, or such services are ever performed or tendered; or (d)
in respect of any Swap Contract. The amount of any Contingent Obligation
shall (x) in the case of a Guaranty Obligation, be deemed equal to the
stated or determinable amount of the primary obligation in respect of
which such Guaranty Obligation is made or, if not stated or if
indeterminable, the maximum reasonably anticipated liability in respect
thereof, and (y) in the case of other Contingent Obligations, be equal to
the maximum reasonably anticipated liability in respect thereof as
determined by such Person in good faith.
15
Continuing Member means a member of the board of directors of DASI
or Dura who either (a) was a member of such board of the directors on the
Effective Date and has been such continuously thereafter or (b) became a
member of such board after the Effective Date and whose election or
nomination for election was approved by a vote of the majority of the
Continuing Members then members of such board of directors.
Contractual Obligation means, as to any Person, any provision of any
security issued by such Person or of any agreement, undertaking, contract,
indenture, mortgage, deed of trust or other instrument, document or
agreement to which such Person is a party or by which it or any of its
property is bound.
Conversion/Continuation Date means any Business Day on which a
Borrower (i) converts Loans of a Facility from one Type to another Type in
the same currency or (ii) continues as Loans of the same Type and
currency, but with a new Interest Period, Loans of a Facility having
Interest Periods expiring on such date.
Credit Extension means (a) the making of any Loan hereunder (but not
the continuation of a Loan as a Loan of the same Type and currency nor the
conversion of a Loan from one Type into another Type in the same currency)
and (b) the Issuance of any Letter of Credit hereunder.
DASI - see the Preamble.
Debenture means each of the debentures listed on Schedule 8.1 and
8.1(e) and each other debenture provided by a Loan Party to the Agent
hereunder (including pursuant to Section 10.14 or 10.17).
Deutschemarks and DM each mean units of lawful money of Germany
known as Deutschemarks.
Dollar Equivalent means, at any time, (a) as to any amount
denominated in U.S. Dollars, the amount thereof at such time, and (b) as
to any amount denominated in Australian Dollars, Canadian Dollars or
another Offshore Currency, the equivalent amount in U.S. Dollars as
determined by the Agent at such time on the basis of the Spot Rate for the
purchase of U.S. Dollars with such Australian Dollars, Canadian Dollars or
other Offshore Currency, as applicable, on the most recent Computation
Date provided for in Section 2.5(a), 3.1, 4.1(b), 5.1(b) or 6.1, as
applicable, or such other date as is specified herein.
16
Dura - see the Preamble.
Dura Australian Borrower - see the Preamble.
Dura Borrowers - see the Preamble.
Dura Canadian Borrower - see the Preamble.
Dura Canadian Loan means a Canadian Loan made to the Dura Canadian
Borrower.
Dura Canadian Loans Sublimit means U.S.$6,000,000, as such amount
may be reduced or increased from time to time in integral multiples of
U.S.$1,000,000 effective four Business Days after written notice of such
reduction or increase is given by Dura to the Agent and the Canadian
Lender, provided that after giving effect to such reduction or increase,
(x) the Dura Canadian Loans Sublimit shall not exceed U.S.$6,000,000 and
(y) the Dura Canadian Loans Sublimit shall not be less than the then
aggregate principal Dollar Equivalent amount of all outstanding Dura
Canadian Loans.
Dura German Borrower - see the Preamble.
EBITDA means, for any period, the sum of
(a) Consolidated Net Income of DASI and its Subsidiaries for such
period excluding, to the extent reflected in determining such
Consolidated Net Income, extraordinary gains and losses for
such period and non-cash restructuring or other non-cash
charges,
plus
(b) to the extent deducted in determining Consolidated Net Income,
Interest Expense, income tax expense, depreciation, depletion,
amortization, any scheduled payment of interest on (without
duplication) any of the Trust Preferred Stock Debentures or
the Trust Preferred Securities and any minority interest
subtracted from Consolidated Net Income for such period.
Effective Amount means with respect to any outstanding L/C
Obligations on any date, the aggregate Dollar Equivalent amount of such
L/C Obligations on such date after giving effect to any Issuances of
Letters of Credit occurring on such date and any other changes in the
aggregate Dollar Equivalent amount of the L/C Obligations as of such date,
including as a result of any reimbursement of outstanding
17
unpaid drawings under any Letter of Credit or any reduction in the maximum
amount available for drawing under any Letter of Credit taking effect on
such date.
Effective Date means the date on which all conditions precedent set
forth in Section 8.1 are satisfied or waived by the Required Lenders.
Eligible Assignee means an "accredited investor" as such term is
defined in Rule 501(a) of Regulation D under the Securities Act of 1933
(other than DASI or an affiliate of DASI); provided that no Person shall
be an Eligible Assignee in respect of any Revolving Commitment or Tranche
A Term Commitment unless, at the time of the proposed assignment to such
Person, such Person is able to make Revolving Group Loans or Tranche A
Term Loans, as the case may be, in U.S. Dollars and each other applicable
currency.
EMU means Economic and Monetary Union as contemplated in the Treaty
on European Union.
EMU Legislation means legislative measures of the European Council
(including European Council regulations) for the introduction of,
changeover to or operation of a single or unified European currency
(whether known as the euro or otherwise), being in part the implementation
of the third stage of EMU.
Environmental Laws means all federal, state, provincial and local
laws, statutes, common law duties, rules, regulations, ordinances and
codes, together with all administrative orders, directed duties, licenses,
authorizations and permits of, any Governmental Authorities, in each case
relating to protection of the environment or occupational health and
safety matters.
ERISA means the Employee Retirement Income Security Act of 1974.
ERISA Affiliate means any trade or business (whether or not
incorporated) under common control with DASI within the meaning of Section
414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code for
purposes of provisions relating to Section 412 of the Code).
ERISA Event means (a) a Reportable Event with respect to a Pension
Plan; (b) the failure to make a required contribution to a Pension Plan if
such failure is sufficient to give rise to a Lien under Section 302(f) of
ERISA; (c) a withdrawal by DASI or any ERISA Affiliate from a Pension Plan
subject to Section 4063 of ERISA during a plan year in
18
which it was a substantial employer (as defined in Section 4001(a)(2) of
ERISA) or a cessation of operations which is treated as such a withdrawal
under Section 4062(e) of ERISA; (d) a complete or partial withdrawal by
DASI or any ERISA Affiliate from a Multiemployer Plan or notification that
a Multiemployer Plan is in reorganization; (e) the filing of a notice of
intent to terminate, the treatment of a Plan amendment as a termination
under Section 4041 or 4041A of ERISA, or the commencement of proceedings
by the PBGC to terminate a Pension Plan or Multiemployer Plan; (f) an
event or condition which might reasonably be expected to constitute
grounds under Section 4042 of ERISA for the termination of, or the
appointment of a trustee to administer, any Pension Plan or Multiemployer
Plan; or (g) the imposition of any liability under Title IV of ERISA,
other than PBGC premiums due but not delinquent under Section 4007 of
ERISA, upon DASI or any ERISA Affiliate.
Euro means the single currency of Participating Member States of the
European Union.
Euro Unit means the currency unit of the Euro.
Event of Default means any of the events or circumstances specified
in Section 12.1.
Excel means Excel Industries, Inc., an Indiana corporation.
Excel Acquisition means the Acquisition by Dura of Excel pursuant to
the Excel Acquisition Documents.
Excel Acquisition Documents means the Agreement and Plan of Merger
dated as of January 19, 1999 among DASI, Windows Acquisition Corporation
and Excel, and the Form S-4 Registration Statement of DASI filed with the
SEC on January 29, 1999, as amended as of March 9, 1999, in each case as
in effect on the date hereof and as amended from time to time in
accordance with Section 11.18.
Excel Closing Date means the date (not later than August 1, 1999) on
which all conditions precedent set forth in Section 8.3 are satisfied or
waived by all Lenders.
Excel Debt to be Repaid means Indebtedness of Excel and/or its
Subsidiaries listed on Schedule 8.3A.
Excel Loan Party means any Guarantor that is an Excel Subsidiary.
19
Excel Subsidiary means a Subsidiary acquired through the Excel
Acquisition.
Excepted Asset Sales means (i) dispositions or sales permitted under
subsections 11.2(a), (b) or (c) and (ii) other sales or other dispositions
not in excess of U.S.$25,000,000 in the aggregate during any fiscal year.
Excess Cash Flow means, for any period, the remainder of
(a) the sum, without duplication, of
(i) EBITDA,
plus
(ii) any net decrease in Adjusted Working Capital during such
period (exclusive of decreases in working capital associated with
asset sales),
plus
(iii) any net cash extraordinary gains included in determining
Consolidated Net Income,
minus
(b) the sum, without duplication, of
(i) Interest Expense,
plus
(ii) repayments of principal of Term Loans pursuant to Section
2.9, prepayments of principal of Revolving Loans reflecting
reductions in the Revolving Commitments pursuant to Section 2.7,
principal payments arising with respect to any other long-term
Indebtedness of DASI and its Subsidiaries, and the portion of any
payments with respect to capital leases allocable to principal, in
each case made during such period,
20
plus
(iii) Capital Expenditures for such period, except to the
extent made from proceeds of Indebtedness or new equity issuances or
reinvestment of disposition proceeds,
plus
(iv) all federal, state, local and foreign income taxes paid
in cash by DASI and its Subsidiaries during such period,
plus
(v) any net increase in Adjusted Working Capital during such
period (exclusive of increases in working capital associated with
asset purchases),
plus
(vi) Investments (other than Investments in Affiliates of
DASI) of the types described in subsections 11.4(g), (h) and (k)
made in cash during such period,
plus
(vii) any cash restructuring charges incurred during such
period in connection with the Trident Acquisition, the Adwest
Acquisition or the Excel Acquisition, to the extent not deducted in
computing Consolidated Net Income for such period,
plus
(viii) (without duplication of the foregoing clause (vii), any
net cash extraordinary charges, to the extent reflected in computing
Consolidated Net Income for such period,
plus
(ix) any cash dividends and cash purchase price paid in
respect of shares of DASI permitted under Section 11.14.
Exchange Act means the Securities and Exchange Act of 1934.
21
Excluded Property means the property described in Part A of Schedule
9.9.
Existing Credit Agreement - see the Recitals.
Existing Letters of Credit means the letters of credit issued by
Bank of America under the Existing Credit Agreement and outstanding on the
initial Closing Date.
Facility means any of the Interim Term Facility, the Tranche A Term
Facility, the Tranche B Term Facility or the Revolving Facility.
Fee Letter - see subsection 2.11(a).
Floating Rate means (i) with respect to Obligations in Dollars
(other than Obligations of Canadian Borrowers), the U.S. Base Rate, (ii)
with respect to Obligations in Australian Dollars, the Australian
Overnight Rate, (iii) with respect to Obligations in Canadian Dollars, the
Canadian Prime Rate, (iv) with respect to Obligations of Canadian
Borrowers in Dollars, the BACAN U.S. Base Rate, (v) with respect to
Obligations in any other Offshore Currency, the applicable Overnight Rate,
and (vi) with respect to Obligations in any Agreed Alternative Currency, a
comparable interest rate measure agreed to by DASI, the Agent and the
Lenders at the time such currency becomes an Agreed Alternative Currency
under this Agreement.
Floating Rate Loan means a Loan, or an L/C Advance that bears
interest based on the Floating Rate.
Floating Rate Margin means, with respect to the U.S. Base Rate and
the Canadian Prime Rate, the U.S. Base Rate Margin, and with respect to
any other Floating Rate, the Other Floating Rate Margin.
Foreign Loan Party - see Section 14.22.
Form W-8 - see subsection 7.1(f).
FRB means the Board of Governors of the Federal Reserve System, and
any Governmental Authority succeeding to any of its principal functions.
FX Trading Office means the Foreign Exchange Trading Center #5193,
San Francisco, California, of Bank of America, or such other of Bank of
America's offices as Bank of America may designate from time to time.
22
GAAP means generally accepted accounting principles set forth from
time to time in the opinions and pronouncements of the Accounting
Principles Board and the American Institute of Certified Public
Accountants and statements and pronouncements of the Financial Accounting
Standards Board (or agencies with similar functions of comparable stature
and authority within the U.S. accounting profession), which are applicable
to the circumstances as of the date of determination, it being understood
that determinations thereof are subject to Section 1.3.
Governmental Authority means any nation or government, any state,
province or other political subdivision thereof, any central bank (or
similar monetary or regulatory authority including the National
Association of Insurance Commissioners), any entity exercising executive,
legislative, judicial, regulatory, monetary or administrative functions of
or pertaining to government, and any corporation or other entity owned or
controlled, through stock or capital ownership or otherwise, by any of the
foregoing.
Group Borrowing means a Borrowing hereunder consisting of Loans
(other than Australian Loans, Canadian Loans or Swing Line Loans) under
one Facility made by the Lenders ratably according to their respective Pro
Rata Shares.
Group Loan means a Loan (other than an Australian Loan, Canadian
Loan or Swing Line Loan) made by a Lender ratably according to its Pro
Rata Share.
Guaranties mean each Guaranty delivered under the Existing Credit
Agreement (including those listed on Schedule 8.1) and each other guaranty
executed and delivered hereunder (including those listed on Schedule
8.1(d) and pursuant to Section 10.14) by a Subsidiary substantially in the
form of Exhibit D; and Guaranty means any of the foregoing.
Guarantors mean the guarantors party to the Guaranties; and
Guarantor means any of the foregoing.
Guaranty Obligation has the meaning specified in the definition of
Contingent Obligation.
Honor Date - see subsection 6.3(b).
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)
23
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); (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; and (h) all Guaranty Obligations of such Person in respect
of indebtedness or obligations of others of the kinds referred to in
clauses (a) through (g) above.
Indemnified Liabilities - see Section 14.5.
Indemnified Person - see Section 14.5.
Independent Auditor - see subsection 10.1(a).
Insolvency Proceeding means, with respect to any Person, (a) any
case, action or proceeding with respect to such Person before any court or
other Governmental Authority relating to bankruptcy, reorganization,
insolvency, liquidation, receivership, dissolution, winding-up,
administration or relief of debtors, or (b) any general assignment for the
benefit of creditors, arrangement, compromise, composition, marshalling of
assets for creditors, or other, similar arrangement in respect of such
Person's creditors generally or any substantial portion of its creditors.
24
Interest Expense means for any period the consolidated interest
expense of DASI and its Subsidiaries for such period determined in
accordance with GAAP (including to the extent, if any, excluded therefrom,
distributions in respect of the Trust Preferred Stock Debentures but
excluding amortization of fees and expenses in connection with the Trident
Acquisition, the Adwest Acquisition, the Excel Acquisition, this Agreement
and the transactions contemplated by the foregoing), net of any interest
income from cash collateral securing Indebtedness.
Interest Payment Date means (a) as to any Loan other than a Floating
Rate Loan, the last day of each Interest Period applicable to such Loan,
and (b) as to any Floating Rate Loan, the last Business Day of each
calendar quarter, provided that if any Interest Period for an Offshore
Rate Loan, Australian Bank Bill Rate Loan, Offshore Canadian Loan or
Canadian U.S. Dollar Offshore Rate Loan exceeds three months, the date
that falls three months after the beginning of such Interest Period also
shall be an Interest Payment Date.
Interest Period means, as to any Offshore Rate Loan, Australian Bank
Bill Rate Loan, Offshore Canadian Loan or Canadian U.S. Dollar Offshore
Rate Loan, the period commencing on the Borrowing Date of such Loan or on
the Conversion/Continuation Date on which such Loan is converted into or
continued as an Offshore Rate Loan, Australian Bank Bill Rate Loan,
Offshore Canadian Loan or Canadian U.S. Dollar Offshore Rate Loan, as
applicable, and ending on the date one, two, three or six months
thereafter (or (x) in the case of any Interest Period beginning prior to
June 30, 1999, seven days, or (y) in the case of one Interest Period for
the Term Loans under each of the Interim Term Facility, the Tranche A Term
Facility and the Tranche B Term Facility and subject to Section 7.5, such
other period of time approved by the Agent, not exceeding six months, as
will cause the last day of such Interest Period to fall on a day on which
principal is scheduled to be repaid under such Facility) as selected by
the applicable Borrower in its Notice of Group Borrowing, Notice of
Australian Borrowing, Notice of Canadian Borrowing, or Notice of
Conversion/Continuation, as the case may be; provided that:
(i) if any Interest Period would otherwise end on a day that
is not a Business Day, such Interest Period shall be extended to the
following Business Day unless the result of such extension would be
to carry such Interest Period into another calendar month, in which
event such Interest Period shall end on the preceding Business Day;
25
(ii) any Interest Period for an Offshore Rate Loan, Australian
Bank Bill Rate Loan, Offshore Canadian Loan or Canadian U.S. Dollar
Offshore Rate Loan, that begins on the last Business Day of a
calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest
Period) shall end on the last Business Day of the calendar month at
the end of such Interest Period;
(iii) no Interest Period for any Revolving Loan shall extend
beyond the scheduled Revolving Commitment Termination Date;
(iv) no Interest Period for any Interim Term Loan shall extend
beyond the Interim Term Maturity Date;
(v) no Interest Period for any Term Loan under the Tranche A
Term Facility or the Tranche B Term Facility shall extend beyond any
scheduled installment date for such Facility unless the aggregate
principal amount of all Term Loans under such Facility that are
Floating Rate Loans and of all Term Loans under such Facility having
Interest Periods that will expire on or before such scheduled
installment date equals or exceeds the amount of the installment of
the Term Loans under such Facility due on such date;
(vi) no Borrower may select an Interest Period for an Offshore
Currency Loan in any Offshore Currency which would extend beyond the
date on which such Offshore Currency ceases to be legal tender in
its respective country; and
(vii) subject to the foregoing clauses (iii) and (iv) of this
proviso, the Australian Lender may approve any other Interest Period
requested by the Dura Australian Borrower for Australian Bank Bill
Rate Loans not otherwise permitted by this definition, and the
Canadian Lender may approve any other Interest Period requested by a
Canadian Borrower for Offshore Canadian Loans or Canadian U.S.
Dollar Offshore Rate Loans not otherwise permitted by this
definition.
Interim Term Commitment means a Lender's commitment to make an
Interim Term Loan hereunder.
Interim Term Facility means the U.S. Dollar interim term loan
facility provided hereunder as set forth in subsection 2.1(a).
26
Interim Term Loan - see subsection 2.1(a).
Interim Term Maturity Date means the 18-month anniversary of the
initial Closing Date.
Investment - see Section 11.4.
IRS means the Internal Revenue Service, and any Governmental
Authority succeeding to any of its principal functions under the Code.
Issuance Date - see subsection 6.1(a).
Issue means, with respect to any Letter of Credit, to issue or to
extend the expiry of, or to renew or increase the amount of, such Letter
of Credit; and the terms "Issued," "Issuing" and "Issuance" have
corresponding meanings.
Issuing Lender means Bank of America in its capacity as issuer of
one or more Letters of Credit hereunder, together with any replacement
letter of credit issuer arising under Section 13.9.
Joinder Agreement means an agreement by which a Subsidiary becomes a
party to this Agreement, substantially in the form of Exhibit E.
Joint Venture means a limited-purpose corporation, partnership,
limited liability company, joint venture or other similar legal
arrangement (whether created by contract or conducted through a separate
legal entity) now or hereafter formed by DASI or any of its Subsidiaries
with another Person or Persons in order to conduct a common venture or
enterprise with such Person or Persons.
L/C Advance means each Revolving Lender's participation in any L/C
Borrowing in accordance with its Pro Rata Share.
L/C Amendment Application means an application form for amendment of
outstanding standby or commercial documentary letters of credit as shall
at any time be in use by the Issuing Lender, as the Issuing Lender shall
request.
L/C Application means an application form for issuances of standby
or commercial documentary letters of credit as shall at any time be in use
by the Issuing Lender, as the Issuing Lender shall request.
L/C Borrowing means an extension of credit resulting from a drawing
under any Letter of Credit which shall not
27
have been reimbursed on the date when made nor converted into a Borrowing
of Revolving Loans under subsection 6.3(b).
L/C Commitment means the commitment of the Issuing Lender to Issue,
and the commitment of the Revolving Lenders severally to participate in,
Letters of Credit from time to time Issued or outstanding under Article VI
for the account of any Borrower, in an aggregate Dollar Equivalent amount
not to exceed on any date an amount equal to the lesser of (i) the excess
of the amount of the combined Revolving Commitments over the aggregate
outstanding principal amount of all Revolving Loans, and (ii)
U.S.$30,000,000; it being understood that the L/C Commitment is a part of
the combined Revolving Commitments, rather than a separate, independent
commitment.
L/C Fee Rate means the applicable rate set forth under the heading
"L/C Fee Rate" in Schedule 1.1.
L/C Obligations means at any time the sum of (a) the aggregate
undrawn Dollar Equivalent amount of all Letters of Credit then
outstanding, plus (b) the Dollar Equivalent amount of all unreimbursed
drawings under all Letters of Credit, including all outstanding L/C
Borrowings.
L/C-Related Documents means the Letters of Credit, the L/C
Applications, the L/C Amendment Applications and any other document
relating to any Letter of Credit, including any of the Issuing Lender's
standard form documents for letter of credit issuances.
Lender - see the Preamble. References to the "Lenders" shall, unless
the context otherwise requires, include BA Australia Limited in its
capacity as Australian Lender, BACAN in its capacity as Canadian Lender
and Bank of America in its capacity as Issuing Lender and as Swing Line
Lender; for purposes of clarification only, to the extent that Bank of
America may have any rights or obligations in addition to those of the
Lenders due to its status as Issuing Lender or Swing Line Lender, its
status as such will be specifically referenced.
Lender Parties means the Agent, the Lenders, their respective
Affiliates and other Indemnified Persons.
Lending Office means, as to any Lender, the office or offices of
such Lender (or, in the case of any Offshore Currency Loan, Australian
Loan or Canadian Loan, of an Affiliate of such Lender) specified as its
"Lending Office", "Domestic Lending Office", "Offshore Lending Office",
"Australian Lending Office" or "Canadian Lending Office", as
28
the case may be, on Schedule 14.2, or such other office or offices of such
Lender (or, in the case of any Offshore Currency Loan, Australian Loan or
Canadian Loan, of an Affiliate of such Lender) as such Lender may from
time to time specify to DASI and the Agent.
Letter of Credit means any Existing Letter of Credit and any letter
of credit (whether a standby letter of credit or a commercial documentary
letter of credit) Issued by the Issuing Lender pursuant to Article VI.
Lien means any security interest, mortgage, deed of trust, pledge,
hypothecation, assignment for security, charge or deposit arrangement,
encumbrance, preferential arrangement in the nature of security or lien
(statutory or other) in respect of any property (including those created
by, arising under or evidenced by any conditional sale or other title
retention agreement, the interest of a lessor under a capital lease, or
any financing lease having substantially the same economic effect as any
of the foregoing, but not including the interest of a lessor under an
operating lease).
Loan means a Revolving Loan or a Term Loan.
Loan Documents mean this Agreement, each Joinder Agreement, any
Note, the Fee Letter, the L/C-Related Documents, each Guaranty, each
Collateral Document and all other agreements executed by a Loan Party in
favor of the Agent or any Lender in connection herewith (but not including
the Trident Acquisition Documents, the Adwest Acquisition Documents, the
Excel Acquisition Documents or other documents effecting an Acquisition).
Loan Parties means the Borrowers and the Guarantors; and Loan Party
means any Borrower or any Guarantor, as applicable.
Local Time means, in the case of any Loan, the local time of the
applicable Lending Office of Bank of America, the Australian Lender or the
Canadian Lender, as the case may be.
London Stock Exchange means The London Stock Exchange Limited.
Margin Stock means "margin stock" as such term is defined in
Regulation T, U or X of the FRB.
Material Adverse Effect means (a) a material adverse change in, or a
material adverse effect upon, the
29
operations, business, properties or condition (financial or otherwise) of
DASI and its Subsidiaries taken as a whole; or (b) a material impairment
of the ability of the Loan Parties to perform under any applicable Loan
Document.
Material Subsidiary means (a) each Loan Party, and (b) any other
Subsidiary (other than Dura Automotive Systems Capital Trust) whose assets
or annual revenues together with the assets or annual revenues, as the
case may be, of its Subsidiaries constitute 5% or more of the total assets
or annual revenues (based on a pro forma basis for the most recently ended
fiscal year) of DASI and its Subsidiaries on a consolidated basis.
Minimum Tranche means, in respect of Loans comprising part of the
same Borrowing, or to be converted or continued under Section 2.4, 4.3 or
5.3, (a) in the case of U.S. Dollar Loans (other than Canadian U.S. Dollar
Loans), U.S.$3,000,000 or a higher integral multiple of U.S.$1,000,000,
(b) in the case of Australian Loans in Australian Dollars, A$500,000 or a
higher integral multiple of A$250,000, or such other amount that is
acceptable to the Australian Lender, (c) in the case of Australian Loans
in U.S. Dollars, U.S.$500,000 or a higher integral multiple of
U.S.$250,000, or such other amount that is acceptable to the Australian
Lender, (d) in the case of Canadian Loans in Canadian Dollars, C$1,000,000
or a higher integral multiple of C$500,000, or such other amount that is
acceptable to the Canadian Lender, (e) in the case of Canadian U.S. Dollar
Loans, U.S. $500,000 or a higher integral multiple of U.S. $250,000, or
such other amount that is acceptable to the Canadian Lender, (f) in the
case of Offshore Currency Loans (other than Adwest Acquisition Loans), a
minimum Dollar Equivalent amount of U.S.$3,000,000 and an integral
multiple of 1,000,000 units of the Applicable Currency, (g) in the case of
Adwest Acquisition Loans, a minimum Dollar Equivalent amount of
U.S.$500,000 and an integral multiple of 100,000 units of the Applicable
Currency or (h) in the case of any Type of Loans, the remaining unused
amount of the applicable Commitments, if less than the foregoing amounts.
Moblan - see the Preamble.
Mortgage means each mortgage or deed of trust listed on Schedules
8.1 and 8.1(e) and each other mortgage or deed of trust provided to the
Agent by a Loan Party hereunder (including pursuant to Section 10.14).
Multiemployer Plan means a "multiemployer plan", within the meaning
of Section 4001(a)(3) of ERISA, to which DASI or
30
any ERISA Affiliate makes, is making, or is obligated to make
contributions or, during the preceding three calendar years, has made, or
been obligated to make, contributions.
National Currency Unit means a fraction or multiple of one Euro Unit
expressed in units of the former national currency of a Participating
Member State.
Net Cash Proceeds means
(a) with respect to the sale, transfer or other disposition by
DASI or any Subsidiary of any asset (including any stock of any
Subsidiary), the aggregate cash proceeds (including cash proceeds
received by way of deferred payment of principal pursuant to a note,
installment receivable, reserve for adjustment or otherwise, but
only as and when received) received by DASI or any Subsidiary
pursuant to such sale, transfer or other disposition, net (subject
to reserves for normal course post-closing adjustments and reserves
for indemnification obligations in connection with such asset sale)
of (i) the direct costs relating to such sale, transfer or other
disposition (including sales commissions and legal, accounting and
investment banking fees), (ii) taxes paid or payable as a result
thereof (after taking into account any available tax credits or
deductions and any tax sharing arrangements), (iii) amounts applied
to the repayment of any Indebtedness secured by a Lien on the asset
subject to such sale, transfer or other disposition (other than the
Obligations); and (iv) liabilities of the entity, or relating to the
business or assets, sold, transferred or otherwise disposed of which
are retained by DASI or the applicable Subsidiary; and
(b) with respect to any issuance of equity securities or
Subordinated Indebtedness, the aggregate cash proceeds received by
DASI or any Subsidiary pursuant to such issuance, net of the direct
costs relating to such issuance (including sales and underwriter's
commissions and legal, accounting and investment banking fees).
If DASI or any Subsidiary receives Net Cash Proceeds in a currency
other than U.S. Dollars, the Dollar Equivalent amount thereof shall be
determined as of the date of such receipt.
New UK Borrower - see the Preamble.
31
Non-Adwest Acquisition Credit Extension means any Credit Extension
other than an Adwest Acquisition Loan and the Refinancing Credit
Extensions.
Non-Trident Subsidiary means any Subsidiary of DASI other than
Trident and the Subsidiaries of Trident.
Note means a promissory note executed by a Borrower in favor of a
Lender pursuant to subsection 2.2(b), in substantially the form of Exhibit
F.
Notice of Australian Borrowing means a notice in substantially the
form of Exhibit A-2.
Notice of Canadian Borrowing means a notice in substantially the
form of Exhibit A-3.
Notice of Conversion/Continuation means a notice in substantially
the form of Exhibit B-1 (in the case of a notice pursuant to Section 2.4)
Exhibit B-2 (in the case of a notice pursuant to Section 4.3) or Exhibit
B-3 (in the case of a notice pursuant to Section 5.3).
Notice of Group Borrowing means a notice in substantially the form
of Exhibit A-1.
Obligations means all advances, debts, liabilities, obligations,
covenants and duties which are owing by any Loan Party to any Lender
Party, whether direct or indirect (including those acquired by
assignment), absolute or contingent, due or to become due, or now existing
or hereafter arising, arising under (i) any Loan Document, (ii) any Swap
Contract or (iii) any other agreement relating to indebtedness for
borrowed money, letter of credit or bank guarantee having an aggregate
principal Dollar Equivalent amount for all such agreements under this
clause (iii) not in excess of U.S.$50,000,000, each of which agreements is
designated by DASI in writing (substantially in the form of Exhibit J) to
the Agent (and acknowledged by the Agent) as an "Other Qualified Secured
Agreement" with a specified maximum principal Dollar Equivalent amount.
OECD means the Organization for Economic Cooperation and
Development.
Offshore Canadian Loan means any Canadian Loan that bears interest
based on the Canadian Offshore Rate.
Offshore Currency means at any time Pounds Sterling, Canadian
Dollars, French francs, Deutschemarks, Spanish pesetas, Euros and any
Agreed Alternative Currency. Any
32
reference to a National Currency Unit of a Participating Member State in
this definition of "Offshore Currency" shall be deemed to also include a
reference to the Euro Unit.
Offshore Currency Loan means any Loan denominated in an Offshore
Currency.
Offshore Currency Offshore Rate Loan means any Offshore Rate Loan
denominated in an Offshore Currency.
Offshore Rate means, for any Borrowing of Offshore Rate Loans for
any Interest Period, (i) with respect to Offshore U.S. Dollar Loans, the
rate of interest per annum (rounded upward, if necessary, to the next
1/100th of 1%) determined by the Agent as the rate at which deposits in
U.S. Dollars in the approximate amount of the Offshore Rate Loan of Bank
of America included in such Borrowing (or, if Bank of America does not
have a Loan included in such Borrowing, in the amount of U.S. $5,000,000),
and having a maturity comparable to such Interest Period, are offered by
Bank of America's Grand Cayman Branch, Grand Cayman, B.W.I. (or such other
office as may be designated by Bank of America) to major banks in the
offshore interbank market at approximately 9:00 a.m. (San Francisco time)
two Business Days prior to the commencement of such Interest Period, or
(ii) with respect to Offshore Currency Offshore Rate Loans, the rate of
interest per annum (rounded upward, if necessary, to the next 1/100th of
1%) determined by the Agent as the rate at which deposits in such Offshore
Currency in the approximate amount of the Offshore Rate Loan of Bank of
America included in such Borrowing (or, if Bank of America does not have a
Loan included in such Borrowing, in a Dollar Equivalent amount, rounded to
a convenient number, of approximately U.S. $5,000,000), and having a
maturity comparable to such Interest Period, are offered by Bank of
America's London Branch, London, England (or such other office as may be
designated by Bank of America) to major banks in the offshore interbank
market at approximately 11:00 a.m. (London time) two Business Days prior
to (or (a) in the case of an Offshore Rate Loan in Pounds Sterling, on the
day of, or (b) in the case of an Offshore Currency Loan in Euros, on such
other date as is customary in the relevant offshore interbank market) the
commencement of such Interest Period.
Offshore Rate Loan means any Loan that bears interest based on the
Offshore Rate.
Offshore U.S. Dollar Loan means any Offshore Rate Loan denominated
in U.S. Dollars.
33
Organization Documents means, for any corporation or other Person,
the certificate or articles of incorporation or association, the bylaws,
any certificate of determination or instrument relating to the rights of
preferred shareholders of such corporation, any shareholder rights
agreement, and all other applicable constating documents of such Person.
Other Floating Rate Margin means the applicable rate per annum set
forth under the heading "Other Floating Rate Margin" on Schedule 1.1.
Other Qualified Secured Agreement means an agreement described in
clause (iii) of the definition of "Obligations" in this Section 1.1.
Other Taxes means any present or future stamp or documentary Taxes
or any other excise or property Taxes which arise from any payment made
hereunder or from the execution, delivery or registration of, or otherwise
with respect to, this Agreement or any other Loan Document.
Overnight Rate means with respect to any amount in an Offshore
Currency, for any day, the rate of interest per annum equal to the higher
of: (i) the rate of interest per annum at which overnight deposits in such
Offshore Currency, in an amount approximately equal to the amount with
respect to which such rate is being determined, would be offered for such
day by Bank of America's London Branch to major banks in the London or
other applicable offshore interbank market, and (ii) the cost of funds to
Bank of America's London Branch with respect to such amount for such day,
expressed as a rate of interest per annum.
Participant - see subsection 14.8(d).
Participating Member State means each country so described in any
EMU Legislation.
Payment Office means (i) in respect of payments in U.S. Dollars, the
address for payments set forth on Schedule 14.2 for the Agent or such
other address as the Agent may from time to time specify in accordance
with Section 14.2, (ii) in the case of payments in any Offshore Currency,
such address as the Agent may from time to time specify in accordance with
Section 14.2, (iii) in the case of Loans to or payments by the Dura
Australian Borrower, the address for payments set forth on Schedule 14.2
for the Australian Lender or such other address as the Australian Lender
may from time to time specify in accordance with Section 14.2 and (iv) in
the case of Loans to or payments by the Canadian
34
Borrowers, the address for payments set forth on Schedule 14.2 for the
Canadian Lender or such other address as the Canadian Lender may from time
to time specify in accordance with Section 14.2.
PBGC means the Pension Benefit Guaranty Corporation, or any
Governmental Authority succeeding to any of its principal functions under
ERISA.
Pension Plan means a pension plan (as defined in Section 3(2) of
ERISA) subject to Title IV of ERISA which any Loan Party or any ERISA
Affiliate may have liability, including any liability by reason of having
been a substantial employer within the meaning of Section 4063 of ERISA at
any time during the preceding five years, or by reason of being deemed to
be a contributing sponsor under Section 4069 of ERISA.
Permitted Liens - see Section 11.1.
Person means an individual, partnership, corporation, limited
liability company, business trust, joint stock company, trust,
unincorporated association, joint venture, Governmental Authority or other
entity.
Plan means an employee benefit plan (as defined in Section 3(3) of
ERISA) which any Loan Party sponsors or maintains or to which any Loan
Party makes, is making, or is obligated to make contributions, and
includes any Pension Plan.
Pledge Agreement means each of the pledge agreements listed on
Schedule 8.1(e) and each other pledge agreement provided by a Loan Party
to the Agent hereunder (including pursuant to Section 10.14).
Pounds Sterling and (pound) each means lawful money of the United
Kingdom.
Pro Rata Share means, as to any Lender in respect of any Facility at
any time, the percentage equivalent (expressed as a decimal, rounded to
the ninth decimal place) at such time of
(a) prior to termination of the Commitments in such Facility,
(i) such Lender's Commitment in such Facility divided by (ii) the
combined Commitments of all Lenders in such Facility, or
(b) after termination of the Commitments in such Facility, (i)
the aggregate principal Dollar Equivalent
35
amount of such Lender's Loans under such Facility plus, in the case
of the Revolving Facility (without duplication), the sum of the
participations of such Lender in the aggregate Dollar Equivalent
principal amount of all Canadian Loans, Australian Loans and Swing
Line Loans and in the Effective Amount of all L/C Obligations,
divided by (ii) the aggregate Dollar Equivalent principal amount of
all Loans under such Facility plus in the case of the Revolving
Facility (without duplication), the Effective Amount of all L/C
Obligations under such Facility.
Reaffirmation(s) of Collateral Documents means the Reaffirmation of
Collateral Documents listed on Schedule 8.1(d).
Reaffirmation(s) of Guaranties means the Reaffirmation of Guaranties
listed on Schedule 8.1(d).
Refinancing Credit Extension means any Credit Extension made on the
Adwest Closing Date (if the Excel Closing Date has not occurred) restating
or refinancing credit extensions then outstanding under the Existing
Credit Agreement.
Related Fund means, with respect to any Lender that is a fund that
invests in bank loans, any other fund that invests in bank loans and is
advised or managed by the same investment advisor as such Lender or by an
Affiliate of such investment advisor.
Replacement Lender - see Section 7.8.
Reportable Event means, any of the events set forth in Section
4043(b) of ERISA or the regulations thereunder with respect to which DASI
or any ERISA Affiliate would be subject to the notice requirements of
Section 4043(b), other than any such event for which the 30-day notice
requirement under ERISA has been waived in regulations issued by the PBGC.
Request for Swing Line Loan means a request in substantially the
form of Exhibit A-4.
Required Lenders means
(a) at any time prior to the Revolving Commitment Termination
Date, Lenders then holding more than 50% of the sum of (i) the then
aggregate unused amount of the Commitments, plus (ii) the then
aggregate unpaid Dollar Equivalent principal amount of the Loans,
plus (iii)
36
(without duplication) the then aggregate Effective Amount of the L/C
Obligations, and
(b) otherwise, Lenders then holding more than 50% of the sum
of (i) the then aggregate unpaid Dollar Equivalent principal amount
of the Loans, plus (ii) (without duplication) the then aggregate
Effective Amount of the L/C Obligations,
it being understood that, for purposes of clauses (a) and (b), the
principal amount of each Lender's Loans shall be deemed to be
(i)(A) in the case of any Lender other than the Australian
Lender, increased by such Lender's participations in the Australian
Loans pursuant to Section 4.5 (whether funded or unfunded), except
to the extent such Lender shall not have funded such participations
as required pursuant to Section 4.5, and (B) in the case of the
Australian Lender, decreased by the amount of the participations of
all other Lenders in its Australian Loans (whether funded or
unfunded), except to the extent any such other Lender shall not have
funded such participations as required pursuant to Section 4.5, and
(ii)(A) in the case of any Lender other than the Canadian
Lender, increased by such Lender's participations in the Canadian
Loans pursuant to Section 5.5 (whether funded or unfunded), except
to the extent such Lender shall not have funded such participations
as required pursuant to Section 5.5, and (B) in the case of the
Canadian Lender, decreased by the amount of the participations of
all other Lenders in its Canadian Loans (whether funded or
unfunded), except to the extent any such other Lender shall not have
funded such participations as required pursuant to Section 5.5, and
(iii)(A) in the case of any Lender other than the Swing Line
Lender, increased by such Lender's participations in the Swing Line
Loans pursuant to Section 3.4 (whether funded or unfunded), except
to the extent such Lender shall not have funded such participations
as required pursuant to Section 3.4, and (B)) in the case of the
Swing Line Lender, decreased by the amount of the participations of
all other Lenders in its Swing Line Loans (whether funded or
unfunded), except to the extent any such other Lender shall not have
funded such participations as required pursuant to Section 3.4), and
37
(iv)(A) in the case of any Lender other than the Issuing Lender,
increased by such Lender's participations in the Effective Amount of
the L/C Obligations pursuant to Section 6.3 (whether funded or
unfunded), except to the extent such Lender shall not have funded
such participations as required pursuant to Section 6.3, and (B) in
the case of the Issuing Lender, decreased by the amount of the
participations of all other Lenders in the Effective Amount of the
L/C Obligations (whether funded or unfunded), except to the extent
any such other Lender shall not have funded such participations as
required pursuant to Section 6.3).
For purposes of determining whether the Required Lenders have approved any
amendment, waiver or consent or taken any other action hereunder, the
Dollar Equivalent amount of all Offshore Currency Loans shall be
calculated on the date such amendment, waiver or consent is to become
effective or such action is to be taken.
Required Revolving Lenders means Revolving Lenders which would
constitute "Required Lenders" if all of the Term Loans had been funded and
then paid in full.
Requirement of Law means, as to any Person, any law (statutory or
common), treaty, rule or regulation or determination of an arbitrator or
of a Governmental Authority, in each case applicable to or binding upon
the Person or any of its property or to which the Person or any of its
property is subject.
Responsible Officer means the chief executive officer, the
president, a vice president or the chief financial officer of DASI or a
Borrower, as the case may be, or any other officer having substantially
the same authority and responsibility; or, with respect to compliance with
financial covenants, the chief financial officer or the treasurer of DASI
or a Borrower, as the case may be, or any other officer having
substantially the same authority and responsibility.
Revolving Commitment - see subsection 2.1(d).
Revolving Commitment Termination Date means the earlier to occur of
(a) March 31, 2005; and (b) the date on which the Revolving Commitments
terminate in accordance with the provisions of this Agreement.
38
Revolving Facility means the revolving multicurrency credit facility
with letter of credit, Swing Line Loan, Australian Loan and Canadian Loan
subfacilities provided hereunder to the Borrowers (including the Trident
Borrowers) as set forth in subsection 2.1(d) and Sections 3.1, 4.1, 5.1
and 6.1.
Revolving Group Loan - see subsection 2.1(d).
Revolving Lender means a Lender which has a Revolving Commitment.
Revolving Loan means (a) an extension of credit by a Lender to a
Borrower under the Revolving Facility pursuant to Article II or Article
VI, which may be a Revolving Group Loan or an L/C Advance, or (b) an
extension of credit by the Australian Lender to the Dura Australian
Borrower pursuant to Article IV, or (c) an extension of credit by the
Canadian Lender to a Canadian Borrower pursuant to Article V, or (d) a
Swing Line Loan to a Borrower pursuant to Article III.
S.155 Date - see subsection 10.17(f).
Same Day Funds means (i) with respect to disbursements and payments
in U.S. Dollars, immediately available funds, and (ii) with respect to
disbursements and payments in Australian Dollars, Canadian Dollars or
another Offshore Currency, same day or other funds as may be determined by
the Agent to be customary in the place of disbursement or payment for the
settlement of international banking transactions in Australian Dollars,
Canadian Dollars or the relevant Offshore Currency.
Schade Reserved Amount means U.S.$62,000,000, provided that the
Schade Reserved Amount shall be reduced to zero if (i) U.S.$50,000,000 or
more of the Indebtedness of Schade GmbH & Co. KG described on Schedule
11.5 outstanding on the Excel Closing Date is refinanced with the proceeds
of Revolving Loans, and (ii) Schade GmbH & Co. KG is not subject to any
contractual restrictions restricting its ability to provide to the Agent
collateral pursuant to Section 10.14.
SEC means the Securities and Exchange Commission, or any
Governmental Authority succeeding to any of its principal functions.
Security Agreement means each of the security agreements listed on
Schedules 8.1 and 8.1(e) and each other security agreement provided by a
Loan Party to the Agent hereunder (including pursuant to Section 10.14).
39
Selected Currency - see subsection 1.6(d).
Senior Leverage Ratio means, as of the last day of any fiscal
quarter, the ratio of
(a) the consolidated Indebtedness of DASI and its Subsidiaries
as of such day, excluding, to the extent, if any, included therein,
(i) the Trust Preferred Stock Debentures and the Trust Preferred
Securities, and (ii) all Subordinated Indebtedness, but including
the outstanding principal amount of Trident Subordinated Debt
to
(b) EBITDA for the Computation Period ending on such day.
If DASI or any Subsidiary makes any Acquisition, the Senior Leverage
Ratio shall be calculated on a combined basis during the first 12 months
following such Acquisition based on the assumption that such Acquisition
had been completed (and the financial results of the acquired Person or
assets had been included in the consolidated financial results of DASI
beginning) on the first day of the relevant Computation Period (but
without adjustment for any cost savings or other synergies attributable to
such Acquisition for the period prior to the date of such Acquisition).
Spicebright - see the Preamble.
Spot Rate for a currency means the rate quoted by Bank of America as
the spot rate for the purchase by Bank of America of such currency with
another currency through its FX Trading Office at approximately 8:00 a.m.
(San Francisco time) on the date two Business Days prior to the date as of
which the foreign exchange computation is made.
Subordinated Indebtedness means unsecured Indebtedness for borrowed
money junior to and subordinate to the Obligations on terms and conditions
satisfactory to the Required Lenders.
Subsidiary of a Person means any corporation, association,
partnership, limited liability company, joint venture, business trust or
other business entity of which more than 50% of the voting stock,
membership interests or other equity interests is owned or controlled
directly or indirectly by such Person, or one or more of the Subsidiaries
of such Person, or a combination thereof.
40
Unless the context otherwise clearly requires, references herein to a
"Subsidiary" refer to a Subsidiary of DASI.
Surety Instruments means all letters of credit (including standby
and commercial), banker's acceptances, bank guaranties, surety bonds and
similar instruments.
Swap Contract means any agreement (including any master agreement
and any agreement, whether or not in writing, relating to any single
transaction) that is an interest rate swap agreement, basis swap, forward
rate agreement, commodity swap, commodity option, equity or equity index
swap or option, bond option, interest rate option, foreign exchange
agreement, rate cap, collar or floor agreement, currency swap agreement,
cross-currency rate swap agreement, swaption, currency option or any
other, similar agreement (including any option to enter into any of the
foregoing).
Swing Line Commitment means the commitment of the Swing Line Lender
to make Swing Line Loans hereunder.
Swing Line Lender means Bank of America in its capacity as swing
line lender hereunder, together with any replacement swing line lender
arising under Section 13.9.
Swing Line Loan - see Section 3.1.
TARGET Business Day means a day when TARGET is open for business.
TARGET means the Trans-European Automated Real-time Gross Settlement
Express Transfer system or any successor.
Taxes means any and all present or future taxes, levies, imposts,
deductions, charges or withholdings, and all liabilities with respect
thereto, excluding, in the case of each Lender, the Agent and each
Participant, such taxes (including income taxes, franchise or Canadian
capital taxes) as are imposed on or measured by such Lender's, the Agent's
or such Participant's net income by the jurisdiction (or any political
subdivision thereof) under the laws of which such Lender or the Agent, as
the case may be, is organized or maintains a lending office.
Term Loans means the Interim Term Loans and the Tranche A Term Loans
and the Tranche B Term Loans.
Total Borrower Revolving Outstandings means, with respect to any
Borrower, the sum of the aggregate principal Dollar Equivalent amount of
all outstanding Revolving Group Loans to such Borrower plus the aggregate
principal Dollar
41
Equivalent amount of all Swing Line Loans to such Borrower plus (without
duplication) the Effective Amount of all L/C Obligations of such Borrower.
Total Debt to EBITDA Ratio means, as of the last day of any fiscal
quarter, the ratio of
(a) the consolidated Indebtedness of DASI and its Subsidiaries
(excluding, to the extent, if any, included therein, the Trust
Preferred Stock Debentures and the Trust Preferred Securities) as of
such day
to
(b) EBITDA for the Computation Period ending on such day.
If DASI or any Subsidiary makes any Acquisition, the Total Debt to
EBITDA Ratio shall be calculated on a combined basis during the first 12
months following such Acquisition based on the assumption that such
Acquisition had been completed (and the financial results of the acquired
Person or assets had been included in the consolidated financial results
of DASI beginning) on the first day of the relevant Computation Period
(but without adjustment for any cost savings or other synergies
attributable to such Acquisition for the period prior to the date of such
Acquisition).
Total Revolving Outstandings means the sum of the aggregate
principal Dollar Equivalent amount of all outstanding Revolving Group
Loans plus the Australian Loans Sublimit plus the Dura Canadian Loans
Sublimit plus the Trident Canadian Loans Sublimit plus the aggregate
principal Dollar Equivalent amount of all Swing Line Loans plus (without
duplication) the Effective Amount of all L/C Obligations of the Borrowers.
Total Trident Revolving Outstandings means the sum of the aggregate
principal Dollar Equivalent amount of all outstanding Revolving Group
Loans to the Trident Borrowers plus the Trident Canadian Loans Sublimit
plus the aggregate principal Dollar Equivalent amount of all Swing Line
Loans to the Trident Borrowers plus (without duplication) the Effective
Amount of all L/C Obligations of the Trident Borrowers.
Tranche A Final Maturity Date means March 31, 2005.
Tranche A Term Commitment means a Lender's commitment to make
Tranche A Term Loans hereunder.
42
Tranche A Term Facility means the multicurrency term loan facility
provided hereunder as set forth in subsection 2.1(b).
Tranche A Term Loan - see subsection 2.1(b).
Tranche A Term Loan Disbursement Date means the initial Closing Date
and up to three additional Borrowing Dates following the initial Closing
Date on which Tranche A Term Loans may be disbursed under this Agreement,
to be such dates (not later than June 30, 1999) as requested by DASI in
accordance with Section 2.3.
Tranche B Final Maturity Date means March 31, 2006.
Tranche B Term Commitment means a Lender's commitment to make
Tranche B Term Loans hereunder.
Tranche B Term Facility means the U.S. Dollar term loan facility
provided hereunder as set forth in subsection 2.1(c).
Tranche B Term Loan - see subsection 2.1(c).
Treaty on European Union means the Treaty of Rome of March 25, 1957,
as amended by the Single European Act 1986 and the Maastricht Treaty
(which was signed at Maastricht on February 7, 1992 and came into force on
November 1, 1993), as amended from time to time.
Trident - see the Preamble.
Trident Acquisition means the Acquisition by Dura or one or more of
its Subsidiaries of Trident pursuant to the Trident Acquisition Documents.
Trident Acquisition Documents means the documents listed in Schedule
8.1(f), in each case as in effect on the date hereof and as amended from
time to time in accordance with Section 11.18.
Trident Borrowers - see the Preamble.
Trident Canadian Borrower - see the Preamble.
Trident Canadian Loan means a Canadian Loan made to the Trident
Canadian Borrower.
Trident Canadian Loans Sublimit means U.S.$3,000,000, as such amount
may be reduced or increased from time to time in integral multiples of
U.S.$1,000,000 effective four
43
Business Days after written notice of such reduction or increase is given
by DASI to the Agent and the Canadian Lender, provided that after giving
effect to such reduction or increase, (x) the Trident Canadian Loans
Sublimit shall not exceed U.S.$3,000,000 and (y) the Trident Canadian
Loans Sublimit shall not be less than the then aggregate principal Dollar
Equivalent amount of all outstanding Trident Canadian Loans.
Trident Indemnified Liabilities - see Section 14.5.
Trident Loan Party means any Trident Borrower and any Guarantor that
is a Trident Subsidiary.
Trident Obligations means (i) so long as the Trident Subordinated
Debt is outstanding and held by any Person other than Affiliates of DASI,
all advances, debts, liabilities, obligations, covenants and duties
arising under any Loan Document which are owing by any Trident Loan Party
to any Lender, the Agent or any Indemnified Person, whether direct or
indirect (including those acquired by assignment), absolute or contingent,
due or to become due, or now existing or hereafter arising, and (ii) at
any other time, all Obligations.
Trident Subordinated Debt means the Indebtedness of Trident issued
under the Trident Subordinated Debt Indenture.
Trident Subordinated Debt Indenture means the Series A and Series B
10% Senior Subordinated Notes due 2005 Indenture dated as of December 12,
1997 among Trident, Trident UK, Spicebright, Trident US, Moblan, Trident
Automotive, L.P., Trident Automotive, L.L.C., Dominion Controls Inc., Acco
Canada Limited, Trident Automotive Canada Co., and The Chase Manhattan
Bank, as trustee.
Trident Subsidiary means a Subsidiary of Trident.
Trident UK - see the Preamble.
Trident US - see the Preamble.
Trust Preferred Securities means the Convertible Trust Originated
Preferred Securities issued by the Trust Preferred Stock Trust containing
substantially the terms described in the Trust Preferred Stock Prospectus.
Trust Preferred Stock Debentures means the 7 1/2% Convertible
Subordinated Debentures issued by DASI to the Trust Preferred Stock Trust
containing substantially the
44
terms described in the Trust Preferred Stock Prospectus and relating to
the Trust Preferred Securities.
Trust Preferred Stock Indenture means the Indenture dated as of
March 20, 1998 of DASI to The First National Bank of Chicago, as trustee.
Trust Preferred Stock Prospectus means the Prospectus dated March
16, 1998 for Dura Automotive Systems Capital Trust Convertible Trust
Preferred Securities issued by the Trust Preferred Stock Trust.
Trust Preferred Stock Trust means the Dura Automotive Systems
Capital Trust, a special purpose Delaware business trust established by
DASI, of which DASI holds all the common securities, which issued the
Trust Preferred Securities, and which has lent to DASI (such loans being
evidenced by the Trust Preferred Stock Debentures) the net proceeds of
issuance and sale of the Trust Preferred Securities.
Type of Loan means (a) in the case of Group Loans, a U.S. Base Rate
Loan or an Offshore Rate Loan, (b) in the case of Australian Loans, an
Australian Bank Bill Rate Loan, an Australian Floating Rate Loan or an
Australian U.S. Dollar Loan, (c) in the case of Canadian Loans, a Canadian
Prime Rate Loan, an Offshore Canadian Loan, a Canadian U.S. Dollar Base
Rate Loan or a Canadian U.S. Dollar Offshore Rate Loan and (d) in the case
of Swing Line Loans, a Floating Rate Loan.
U.K. Borrower Interest Deferral Date means the earlier of (a)
December 30, 1999 and (b) the date that is five Business Days after the
last date by which the Agent and Dura shall have received notice with
respect to each applicable Lender required under Section 7.1(i) to submit
a claim for relief from United Kingdom income tax that such Lender has
been granted relief from U.K. income tax on interest payable to such
Lender from the U.K. Borrowers under the Loan Documents.
U.K. Borrowers means Trident, Trident UK, Spicebright, the New UK
Borrower, and, upon its joinder hereto as a Borrower pursuant to Sections
10.17 and 14.21, Adwest.
U.K. City Code means the City Code on Take-over and Mergers for the
time being in force with respect to takeovers and mergers in the United
Kingdom.
U.K. Panel means the Panel on Takeovers and Mergers in the United
Kingdom.
45
Unfunded Pension Liability means the excess of a Plan's benefit
liabilities under Section 4001(a)(16) of ERISA over the current value of
such Plan's assets, determined in accordance with the assumptions used for
funding such Plan pursuant to Section 412 of the Code for the applicable
plan year.
United States and U.S. each means the United States of America.
Unmatured Event of Default means any event or circumstance which,
with the giving of notice, the lapse of time, or both, would (if not cured
or otherwise remedied during such time) constitute an Event of Default.
U.S. Base Rate means, for any day, the higher of: (a) 0.50% per
annum above the latest U.S. Federal Funds Rate; and (b) the per annum rate
of interest in effect for such day as publicly announced from time to time
by Bank of America at its headquarters as its "reference rate." (The
"reference rate" is a rate set by Bank of America based upon various
factors including Bank of America's costs and desired return, general
economic conditions and other factors, and is used as a reference point
for pricing some loans, which may be priced at, above or below such
announced rate.) Any change in the reference rate announced by Bank of
America shall take effect at the opening of business on the day specified
in the public announcement of such change.
U.S. Base Rate Loan means a Loan, or an L/C Advance, that bears
interest based on the U.S. Base Rate.
U.S. Base Rate Margin means the applicable rate per annum set forth
under the heading "U.S. Base Rate Margin" on Schedule 1.1.
U.S. Dollars and U.S.$ each mean lawful money of the United States.
U.S. Federal Funds Rate means, for any day, the rate set forth in
the weekly statistical release designated as H.15(519), or any successor
publication, published by the Federal Reserve Bank of New York (including
any such successor, "H.15(519)") on the preceding Business Day opposite
the caption "Federal Funds (Effective)"; or, if for any relevant day such
rate is not so published on any such preceding Business Day, the rate for
such day will be the arithmetic mean as determined by the Agent of the
rates for the last transaction in overnight Federal funds arranged prior
to 9:00 a.m. (New York City time) on that day by each
46
of three leading brokers of Federal funds transactions in New York City
selected by the Agent.
U.S. Loan Party - see Section 14.22.
Welfare Plan means a "welfare plan", as such term is defined in
Section 3(1) of ERISA.
Wholly-Owned Subsidiary means any corporation in which (other than
directors' qualifying shares required by law) 100% of the capital stock of
each class having ordinary voting power, and 100% of the capital stock of
each other class, at the time as of which any determination is being made,
is owned, beneficially and of record, by DASI or by one or more of the
other Wholly-Owned Subsidiaries, or a combination thereof.
1.2 Other Interpretive Provisions.
(a) The meanings of defined terms are equally applicable to the
singular and plural forms of such terms.
(b) The words "hereof", "herein", "hereunder" and similar words
refer to this Agreement as a whole and not to any particular provision of this
Agreement; and subsection, Section, Schedule and Exhibit references are to this
Agreement unless otherwise specified.
(c) (i) The term "documents" includes any and all instruments,
documents, agreements, certificates, indentures, notices and other writings,
however evidenced.
(ii) The term "including" is not limiting and means "including
without limitation."
(iii) In the computation of periods of time from a specified
date to a later specified date, the word "from" means "from and including"; the
words "to" and "until" each mean "to but excluding", and the word "through"
means "to and including."
(d) Unless otherwise expressly provided herein, (i) references to
agreements (including this Agreement) and other contractual instruments shall be
deemed to include all subsequent amendments and other modifications thereto, but
only to the extent such amendments and other modifications are not prohibited by
the terms of any Loan Document, and (ii) references to any statute or regulation
are to be construed as including all statutory and regulatory provisions
consolidating, amending, replacing, supplementing or interpreting the statute or
regulation.
47
(e) The captions and headings of this Agreement are for convenience
of reference only and shall not affect the interpretation of this Agreement.
(f) This Agreement and other Loan Documents may use several
different limitations, tests or measurements to regulate the same or similar
matters. All such limitations, tests and measurements are cumulative and shall
each be performed in accordance with their terms.
(g) This Agreement and the other Loan Documents are the result of
negotiations among and have been reviewed by counsel to the Agent, the Borrowers
and the other parties, and are the products of all parties. Accordingly, they
shall not be construed against the Lenders or the Agent merely because of the
Agent's or Lenders' involvement in their preparation.
1.3 Accounting Principles. (a) Unless the context otherwise clearly
requires, all accounting terms not expressly defined herein shall be construed,
and all financial computations required under this Agreement shall be made, in
accordance with GAAP, consistently applied; provided that if DASI notifies the
Agent that DASI wishes to amend any covenant in Article XI to eliminate the
effect of any change in GAAP on the operation of such covenant (or if the Agent
notifies DASI that the Required Lenders wish to amend Article XI for such
purpose), then DASI's compliance with such covenant shall be determined on the
basis of GAAP in effect immediately before the relevant change in GAAP became
effective, until either such notice is withdrawn or such covenant is amended in
a manner reasonably satisfactory to DASI and the Required Lenders.
(b) References herein to "fiscal year" and "fiscal quarter" refer to
such fiscal periods of DASI.
1.4 Currency Equivalents Generally. For all purposes of this Agreement
(but not for purposes of the preparation of any financial statements delivered
pursuant hereto), the equivalent in any Offshore Currency or other currency
(including Australian Dollars and Canadian Dollars) of an amount in U.S.
Dollars, and the equivalent in U.S. Dollars of an amount in any Offshore
Currency or other currency (including Australian Dollars and Canadian Dollars),
shall be determined at the Spot Rate.
1.5 Principle of Deemed Reinvestment. Except to the extent permitted under
applicable law, all calculations of interest and fees hereunder are to be made
on the basis of the nominal interest rate set forth herein and not using the
effective rate method of calculation or on any basis which gives effect to the
principle of deemed reinvestment. For the purposes of disclosure under the
Interest Act (Canada), if and to the extent applicable,
48
whenever interest is to be paid hereunder and such interest is to be calculated
on the basis of a period of less than a calendar year, the yearly rate of
interest to which the rate determined pursuant to such calculation is equivalent
is the rate so determined multiplied by the actual number of days in the
calendar year in which the same is to be ascertained and divided by the number
of days in such period.
1.6 Euro.
(a) Redenomination of Offshore Currency Loans and other Obligations
into Euro Units.
(i) From and after January 1, 1999, each obligation under this
Agreement of a party hereto which (A) was originally denominated in the
former national currency of a Participating Member State, or (B) would
otherwise have been denominated in such former national currency prior to
such date shall be denominated in, or redenominated into, as applicable,
the Euro Unit in accordance with EMU Legislation and applicable state law,
provided that, if and to the extent that any EMU Legislation provides that
amounts denominated in the euro unit or the National Currency Unit of a
Participating Member State, that are payable by crediting an account of
the creditor within that country, may be made in either Euro or National
Currency Units, each party to this Agreement shall be entitled to pay or
repay any such amounts in either the Euro Unit or such National Currency
Unit.
(ii) Any Offshore Currency Loans denominated in a National Currency
Unit of a Participating Member State which were made prior to January 1,
1999 but which have Interest Periods ending after January 1, 1999 shall,
for purposes of this Agreement, remain denominated in such National
Currency Unit provided that such Loans may be repaid either in the Euro or
in such National Currency Unit after January 1, 1999; provided, further,
that from and after January 1, 2002 all such amounts shall be deemed to be
in Euro Units.
(iii) Subject to any EMU Legislation, references in this Agreement
to a minimum amount (or an integral multiple thereof) in a National
Currency Unit to be paid to or by a party hereto shall be deemed to be a
reference to such reasonably comparable and convenient amount (or an
integral multiple thereof) in the Euro Unit as the Agent may from time to
time specify.
49
(b) Payments.
(i) All payments by any Borrower or any Lender of amounts
denominated in the Euro or a National Currency Unit of a Participating
Member State, shall be made in immediately available, freely transferable,
cleared funds to the account of the Agent in the principal financial
center in such Participating Member State or in London, England, as from
time to time designated by the Agent for such purpose.
(ii) All amounts payable by the Agent to any party under this
Agreement in the National Currency Unit of a Participating Member State
shall instead be paid in the Euro Unit.
(iii)The Agent shall not be liable to any party to this Agreement in
any way whatsoever for any delay (other than to the extent caused by
willful misconduct or gross negligence of the Agent), or the consequences
of any delay, in the crediting to any account of any amount denominated in
the Euro or a National Currency Unit of a Participating Member State.
(iv) All references herein to the London interbank or other national
market with respect to any National Currency Unit of a Participating
Member State shall be deemed a reference to the applicable markets and
locations referred to in the definition of "Business Day" in Section 1.1.
(c) Increased Costs. The Borrowers shall, from time to time upon
demand of any Lender (with a copy to the Agent), pay to such Lender the
amount of any cost or increased cost incurred by, or of any reduction in
any amount payable to or in the effective return on its capital to, or of
interest or other return foregone by, such Lender or any holding company
of such Lender as a result of the introduction of, changeover to or
operation of the Euro in a Participating Member State, other than any such
cost or reduction or amount foregone reflected in any interest rate
hereunder.
(d) Unavailability of Euro. If the Agent at any time determines
that: (i) the Euro has ceased to be utilized as the basic accounting unit
of the European Community; (ii) for reasons affecting the market in Euros
generally, Euros are not freely traded between banks internationally; or
(iii) it is illegal, impossible or impracticable for payments to be made
hereunder in Euro, then the Agent may, in its discretion declare (such
declaration to be binding on all the parties hereto) that any payment made
or to be made thereafter which, but for this provision, would have been
payable in the Euro shall be made in a component currency of the Euro or
Dollars (as selected by the Agent (the "Selected
50
Currency") and the amount to be so paid shall be calculated on the basis
of the equivalent of the Euro in the Selected Currency).
(e) Additional Changes at Agent's Discretion. This Section and other
provisions of this Agreement relating to Euros and the National Currency
Units of Participating Member States shall be subject to such further
changes as the Agent may from time to time in its reasonable discretion
notify to the Borrowers and the Lenders to be necessary or appropriate to
reflect the changeover to the Euro in Participating Member States.
1.7 Financial Covenants. In the event the Adwest Acquisition or the Excel
Acquisition occurs and the other Acquisition does not occur on or before August
1, 1999, the Borrowers and the Agent agree to negotiate in good faith to amend,
with the consent of the Required Lenders, no later than September 30, 1999 the
minimum required ratios in Section 11.10, the minimum required consolidated
stockholders equity in Section 11.11, the maximum permitted ratios in Section
11.12, and the maximum permitted ratio in Section 11.13, and the percentage and
amount limits and thresholds set forth in subsections 11.1(g), (i), (j), and
(n), subsection 11.2(e), subsections 11.4(f), (g), (h) and (m),subsection
11.5(i), subsection 11.8(h), subsection 11.14(h), subsections 12.1(e), (h), and
(i),in each case to reflect the occurrence of only one of the two Acquisitions.
ARTICLE II
THE CREDITS
2.1 Amounts and Terms of Commitments.
(a) Interim Term Loans. Each applicable Lender severally agrees, on
the terms and conditions set forth herein, to make loans in U.S. Dollars to Dura
(each such loan, an "Interim Term Loan") on each of the Adwest Closing Date and
the Excel Closing Date in an aggregate amount not to exceed at any time
outstanding the amount set forth opposite such Lender's name under the heading
"Interim Term Commitment" on Schedule 2.1 (such amount, as reduced pursuant to
Section 2.7 or changed as a result of one or more assignments under Section 7.8
or 14.8, such Lender's "Interim Term Commitment"); provided that
(i) after giving effect to any Borrowing of Interim Term Loans, the
outstanding principal amount of all Interim Term Loans shall not exceed
U.S.$200,000,000;
51
(ii) after giving effect to any Borrowing of Interim Term Loans, the
amount of such Lender's Interim Term Loans shall not exceed such Lender's
Pro Rata Share of all then outstanding Interim Term Loans;
(iii) no Interim Term Loans shall be made on the Excel Closing Date
if the Excel Closing Date occurs prior to the Adwest Closing Date; and
(iv) if the Adwest Closing Date occurs prior to the Excel Closing
Date, no more than U.S.$150,000,000 in Interim Term Loans shall be made on
the Adwest Closing Date, with the remaining unused portion of the Interim
Term Commitments being available for borrowing on the Excel Closing Date.
Amounts borrowed as Interim Term Loans which are repaid or prepaid may not be
reborrowed. The Interim Term Commitments shall expire concurrently on the
earlier of (A) August 1, 1999 and (B) the later of the Excel Closing Date and
the Adwest Closing Date.
(b) Tranche A Term Loans. Each applicable Lender severally agrees,
on the terms and conditions set forth herein, to make loans in U.S. Dollars,
Canadian Dollars, Pounds Sterling, French francs, Deutschemarks and Euros to
Dura, the Dura German Borrower, Trident, the New UK Borrower, Adwest France S.A.
and Adwest Heidemann Gruppe GmbH & Co. KG (each such loan, a "Tranche A Term
Loan") on each Tranche A Term Loan Disbursement Date in an aggregate Dollar
Equivalent amount (computed in each case with respect to any such loan as of the
date of disbursement of such loan) not to exceed the amount set forth opposite
such Lender's name under the heading "Tranche A Term Commitment" on Schedule 2.1
(such amount, as reduced pursuant to Section 2.7 or changed as a result of one
or more assignments under Section 7.8 or 14.8, such Lender's "Tranche A Term
Commitment"); provided that
(i) after giving effect to any Borrowing of Tranche A Term Loans,
the outstanding principal Dollar Equivalent amount (computed for each
Tranche A Term Loan as of the date such Tranche A Term Loan is made) of
all Tranche A Term Loans shall not exceed U.S.$275,000,000;
(ii) after giving effect to any Borrowing of Tranche A Term Loans,
the amount of such Lender's Tranche A Term Loans shall not exceed such
Lender's Pro Rata Share of all then outstanding Tranche A Term Loans;
(iii) if the Excel Closing Date occurs prior to the Adwest Closing
Date, the Dollar Equivalent amount of all Tranche A Term Loans made on the
Excel Closing Date shall not exceed U.S.$265,000,000;
52
(iv) if the Adwest Closing Date occurs prior to the Excel Closing
Date, the Dollar Equivalent amount of all Tranche A Term Loans made on the
Adwest Closing Date shall not exceed U.S.$165,000,000;
(v) the outstanding aggregate principal Dollar Equivalent amount
(computed for each Tranche A Term Loan as of the date such Tranche A Term
Loan is made) of all Tranche A Term Loans made to U.K. Borrowers shall not
exceed U.S. $125,000,000; and
(vi) the outstanding aggregate principal Dollar Equivalent amount of
all Tranche A Term Loans made to Trident Borrowers shall not exceed
U.S.$38,807,320.
Amounts borrowed as Tranche A Term Loans which are repaid or prepaid may not be
reborrowed, except that the Dollar Equivalent amount of Tranche A Term Loans
prepaid on the second Closing Date (computed for each such Tranche A Term Loan
as of the date such Tranche A Term Loan was originally made) may be reborrowed
on the second Closing Date in different currencies. The Tranche A Term
Commitments shall expire concurrently on the earlier of the (A) the third
Tranche A Term Loan Disbursement Date following the initial Closing Date and (B)
June 30, 1999.
The Borrowers of the Tranche A Term Loans may, not more than once each
year, request that the Agent and the Required Lenders agree to a conversion of
outstanding Tranche A Term Loans into Tranche A Term Loans in different
currencies, at a time and in amounts satisfactory to such Borrowers, the Agent
and the Required Lenders. Upon the consent of the Agent and the Required Lenders
to any such request, such outstanding Tranche A Term Loans shall be so converted
to Tranche A Term Loans in different currencies on such terms.
(c) Tranche B Term Loans. Each applicable 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 B Term Loan") on each of the Adwest Closing
Date and the Excel Closing Date in an aggregate Dollar Equivalent amount not to
exceed at any time outstanding the amount set forth opposite such Lender's name
under the heading "Tranche B Term Commitment" on Schedule 2.1 (such amount, as
reduced pursuant to Section 2.7 or changed as a result of one or more
assignments under Section 7.8 or 14.8, such Lender's "Tranche B Term
Commitment"); provided that
(i) after giving effect to any Borrowing of Tranche B Term Loans,
the outstanding principal Dollar Equivalent amount of all Tranche B Term
Loans shall not exceed U.S.$275,000,000;
53
(ii) after giving effect to any Borrowing of Tranche B Term Loans,
the amount of such Lender's Tranche B Term Loans shall not exceed such
Lender's Pro Rata Share of all then outstanding Tranche B Term Loans;
(iii) if the Excel Closing Date occurs prior to the Adwest Closing
Date, the Dollar Equivalent amount of all Tranche B Term Loans made on the
Excel Closing Date shall not exceed U.S.$200,000,000; and
(iv) if the Adwest Closing Date occurs prior to the Excel Closing
Date, the Dollar Equivalent amount of all Tranche B Term Loans made on the
Adwest Closing Date shall not exceed U.S.$160,000,000.
Amounts borrowed as Tranche B Term Loans which are repaid or prepaid may not be
reborrowed. The Tranche B Term Commitments shall expire concurrently on the
earlier of (A) August 1, 1999 and (B) the later of the Excel Closing Date and
the Adwest Closing Date.
(d) Revolving Group Loans. Each applicable Lender severally agrees,
on the terms and conditions set forth herein, to make loans to the Borrowers
(other than the U.K. Borrowers, the Dura Australian Borrower and the Canadian
Borrowers) in U.S. Dollars, Pounds Sterling, French francs, Deutschemarks and
Euros (each such loan, a "Revolving Group Loan") from time to time on any
Business Day during the period from the initial Closing Date to the Revolving
Commitment Termination Date, in an aggregate Dollar Equivalent amount not to
exceed at any time outstanding the amount set forth opposite such Lender's name
under the heading "Revolving Commitment" on Schedule 2.1 (such amount, as
reduced pursuant to Section 2.7 or changed as a result of one or more
assignments under Section 7.8 or 14.8, such Lender's "Revolving Commitment");
provided that
(i) after giving effect to any Borrowing of Revolving Group
Loans, the Total Revolving Outstandings shall not exceed the
combined Revolving Commitments of all Lenders (less the Schade
Reserved Amount);
(ii) the aggregate principal Dollar Equivalent amount of the
Revolving Group Loans of any Lender plus such Lender's Pro Rata
Share of the Australian Loans Sublimit, the Dura Canadian Loans
Sublimit and the Trident Canadian Loans Sublimit plus such Lender's
Pro Rata Share of the aggregate principal amount of all outstanding
Swing Line Loans plus (without duplication) the participation of
such Lender in the Effective Amount of all L/C Obligations shall not
at any time exceed such Lender's Revolving Commitment;
54
(iii) if the Excel Closing Date occurs prior to the Adwest
Closing Date, the Total Revolving Outstandings shall not exceed U.S.
$235,000,000 at any time prior to the Adwest Closing Date;
(iv) if the Adwest Closing Date occurs prior to the Excel
Closing Date, the Total Revolving Outstandings shall not exceed
U.S.$225,000,000 at any time prior to the Excel Closing Date;
(v) the aggregate Dollar Equivalent amount of all Revolving
Group Loans made in Pounds Sterling, French francs, Deutschemarks,
Euros and any other Offshore Currencies shall not exceed
U.S.$100,000,000;
(vi) the Total Trident Revolving Outstandings shall not exceed
U.S.$55,000,000; and
(vii) the Total Borrower Revolving Outstandings of any
Borrower shall not exceed the amount set forth for such Borrower on
Schedule 2.1(d).
Within the limits of each Lender's Revolving Commitment, and subject to the
other terms and conditions hereof, the Borrowers may borrow under this
subsection 2.1(d), prepay under Section 2.8 and reborrow under this subsection
2.1(d).
2.2 Loan Accounts.
(a) The Loans made by each Lender and the obligations of each
Borrower (and any applicable Subsidiary) in respect of the Letters of Credit
Issued by the Issuing Lender shall be evidenced by one or more accounts or
records maintained by such Lender or the Issuing Lender, as the case may be, in
the ordinary course of business. The accounts or records maintained by the
Agent, each Lender and the Issuing Lender shall be rebuttable presumptive
evidence of the amount of the Loans made by the Lenders to the Borrowers and the
obligations of each Borrower in respect of the Letters of Credit Issued for the
account of such Borrower, and the interest and payments thereon. Any failure to
so record or any error in so recording shall not, however, limit or otherwise
affect the obligation of the applicable Borrower hereunder to pay any amount
owing with respect to any Loan or any Letter of Credit.
(b) Upon the request of any Lender made through the Agent, the Loans
made by such Lender to any Borrower may be evidenced by one or more Notes issued
by such Borrower, instead of loan accounts. Each such Lender may endorse on the
schedule annexed to the applicable Note the date, amount and maturity of each
applicable Loan made by it and the amount of each payment of
55
principal made by the applicable Borrower with respect thereto. Each such Lender
is irrevocably authorized by each Borrower to endorse the applicable Note and
each such Lender's record shall be rebuttable presumptive evidence of the amount
of the Loans made by such Lender to such Borrower; provided, however, that the
failure of a Lender to make, or an error in making, a notation on any Note with
respect to any Loan shall not limit or otherwise affect the obligations of the
applicable Borrower hereunder or under such Note.
2.3 Procedure for Group Borrowings.
(a) Each Group Borrowing shall be made upon the applicable
Borrower's irrevocable written notice delivered to the Agent in the form of a
Notice of Group Borrowing (which notice must be received by the Agent prior to
(i) 8:00 a.m. (San Francisco time) two Business Days prior to the requested
Borrowing Date, in the case of Offshore U.S. Dollar Loans to a Borrower other
than a U.K. Borrower; (ii) 8:00 a.m. (San Francisco time) three Business Days
prior to the requested Borrowing Date, in the case of Offshore U.S. Dollar Loans
to a U.K. Borrower; (iii) 9:00 a.m. (San Francisco time) four Business Days
prior to the requested Borrowing Date, in the case of Loans in an Offshore
Currency; (iv) 10:00 a.m. (San Francisco time) on the requested Borrowing Date,
in the case of U.S. Base Rate Loans to Borrowers other than U.K. Borrowers, and
(v) 10:00 a.m. (San Francisco time) one Business Day prior to the requested
Borrowing Date, in the case of U.S. Base Rate Loans to a U.K. Borrower,
specifying:
(A) the amount of the Group Borrowing, which shall be in
an aggregate amount not less than the Minimum Tranche;
(B) the requested Borrowing Date, which shall be a
Business Day;
(C) the Type of Loans comprising the Group Borrowing;
(D) in the case of a Borrowing of Offshore Rate Loans,
the duration of the Interest Period therefor; and
(E) in the case of a Borrowing of Offshore Currency
Loans, the Applicable Currency.
(b) The Dollar Equivalent amount of any Borrowing of Group Loans in
an Offshore Currency will be determined by the Agent for such Borrowing on the
Computation Date therefor in accordance with subsection 2.5(a). Upon receipt of
a Notice of
56
Group Borrowing, the Agent will promptly notify each applicable Lender thereof
and of the amount of such Lender's Pro Rata Share of the Group Borrowing.
(c) Each applicable Lender will make the amount of its Pro Rata
Share of each Group Borrowing available to the Agent for the account of the
applicable Borrower at the Payment Office on the Borrowing Date requested by
such Borrower in Same Day Funds and in the requested currency (i) in the case of
a Group Borrowing comprised of Loans in U.S. Dollars, by 11:00 a.m. (San
Francisco time) and (ii) in the case of a Borrowing comprised of Offshore
Currency Loans, by such time as the Agent may specify. The proceeds of all such
Loans will promptly be made available to the applicable Borrower by the Agent in
like funds as received by the Agent.
(d) After giving effect to any Group Borrowing, there may not be in
effect more than three different Interest Periods for all Interim Term Loans,
eight different Interest Periods for all Tranche A Term Loans, three different
Interest Periods for all Tranche B Term Loans and ten different Interest Periods
for all Revolving Group Loans.
2.4 Conversion and Continuation Elections for Group Borrowings.
(a) Any Borrower may, upon irrevocable written notice to the Agent
in accordance with subsection 2.4(b):
(i) elect, as of any Business Day, in the case of U.S. Base
Rate Loans, or as of the last day of the applicable Interest Period, in
the case of Offshore U.S. Dollar Loans, to convert any Group Loans of such
Borrower (or any part thereof in an amount not less than the Minimum
Tranche) into Group Loans in U.S. Dollars of the other Type; or
(ii) elect, as of the last day of the applicable Interest
Period, to continue any Group Loans of such Borrower having Interest
Periods expiring on such day (or any part thereof in an amount not less
than the Minimum Tranche) as Group Loans of the same Type and in the same
currency with a new Interest Period;
provided that if at any time the aggregate amount of Offshore U.S. Dollar Loans
in respect of any Group Borrowing is reduced, by payment, prepayment or
conversion of part thereof, to be less than the Minimum Tranche, such Offshore
U.S. Dollar Loans shall automatically convert into U.S. Base Rate Loans.
57
(b) Each Borrower shall deliver a Notice of Conversion/Continuation
to be received by the Agent not later than (i) 8:00 a.m. (San Francisco time)
two Business Days prior to the Conversion/Continuation Date, if the Group Loans
of such Borrower (unless such Borrower is a U.K. Borrower) are to be converted
from U.S. Base Rate Loans into Offshore U.S. Dollar Loans; (ii) 8:00 a.m. (San
Francisco time) three Business Days prior to the Conversion/Continuation Date,
if the Group Loans of a U.K. Borrower are to be converted from U.S. Base Rate
Loans into Offshore U.S. Dollar Loans; (iii) 9:00 a.m. (San Francisco time) four
Business Days prior to the Conversion/Continuation Date, if the Group Loans of
such Borrower are not denominated in U.S. Dollars and are to be continued as
Offshore Rate Loans; (iv) 10:00 a.m. (San Francisco time) on the
Conversion/Continuation Date, if the Group Loans of such Borrower (unless such
Borrower is a U.K. Borrower) are to be converted from Offshore U.S. Dollar Loans
into U.S. Base Rate Loans; and (v) 10:00 a.m. (San Francisco time) one Business
Day prior to the Conversion/Continuation Date, if the Group Loans of a U.K.
Borrower are to be converted from Offshore U.S. Dollar Loans into U.S. Base Rate
Loans, specifying:
(A) the proposed Conversion/Continuation Date;
(B) the aggregate amount and Applicable Currency of the
Group Loans to be converted or continued;
(C) the Type of Group Loans resulting from the proposed
conversion or continuation; and
(D) other than in the case of conversions into U.S. Base
Rate Loans, the duration of the requested Interest Period.
(c) If upon the expiration of any Interest Period applicable to
Offshore U.S. Dollar Loans of a Borrower, such Borrower has failed to timely
select a new Interest Period to be applicable to such Offshore U.S. Dollar
Loans, such Borrower shall be deemed to have elected to convert such Offshore
U.S. Dollar Loans into U.S. Base Rate Loans effective as of the expiration date
of such Interest Period. If such Borrower has failed to select a new Interest
Period to be applicable to Offshore Currency Offshore Rate Loans by the
applicable time on the fourth Business Day in advance of the expiration date of
the current Interest Period applicable thereto as provided in subsection 2.4(b),
such Borrower shall be deemed to have elected to continue such Offshore Currency
Offshore Rate Loans as Offshore Currency Offshore Rate Loans with a new Interest
Period of one month's duration.
58
(d) The Agent will promptly notify each applicable Lender of its
receipt of a Notice of Conversion/Continuation pursuant to this Section 2.4 or,
if no timely notice is provided by the applicable Borrower, the Agent will
promptly notify each applicable Lender of the details of any automatic
conversion or continuation. All conversions and continuations of Group Loans
shall be made ratably according to the respective Pro Rata Shares of the
applicable Lenders.
(e) Unless the Required Lenders otherwise agree, during the
existence of an Event of Default or Unmatured Event of Default, no Borrower may
elect to have a Group Loan converted into an Offshore Rate Loan or continued as
an Offshore Rate Loan.
(f) After giving effect to any conversion or continuation of Loans,
there may not be in effect more than three different Interest Periods for all
Interim Term Loans, five different Interest Periods for all Tranche A Term
Loans, three different Interest Periods for all Tranche B Term Loans and ten
different Interest Periods for all Revolving Group Loans.
2.5 Utilization of Commitments in Offshore Currencies.
(a) The Agent will determine the Dollar Equivalent amount with
respect to (i) any Borrowing comprised of Offshore Currency Loans as of the
requested Borrowing Date, (ii) any Issuance of a Letter of Credit in an Offshore
Currency as of the requested Issuance Date, (iii) any drawing under a Letter of
Credit in an Offshore Currency as of the related Honor Date, (iv) all
outstanding Offshore Currency Loans and LC Obligations as of the last Business
Day of each month, and (v) any outstanding Offshore Currency Loan and L/C
Obligations as of any redenomination date pursuant to this Section 2.5 or
Section 7.2 or 7.5 and any date on which the Revolving Commitments are reduced
pursuant to Section 2.7.
(b) In the case of a proposed Borrowing under the Revolving Facility
comprised of Offshore Currency Loans, the Lenders shall be under no obligation
to make Offshore Currency Loans in the requested Offshore Currency as part of
such Borrowing if the Agent has received notice from any of the Lenders (or, in
the case of a proposed Borrowing in Pounds Sterling, French francs or
Deutschemarks, more than 50% of the Lenders in the applicable Facility) by 5:00
p.m. (San Francisco time) four Business Days prior to the day of such Borrowing
that such Lender (or, if applicable, such Lenders) cannot provide Loans in the
requested Offshore Currency, in which event the Agent will promptly give notice
to the applicable Borrower that the Borrowing in the requested Offshore Currency
is not then available, and notice thereof also will be given promptly by the
Agent to the applicable Lenders. If the Agent shall have so
59
notified DASI that any such Borrowing in a requested Offshore Currency is not
then available, such Borrower may, by notice to the Agent not later than 9:00
a.m. (San Francisco time) three Business Days prior to the requested date of
such Borrowing, withdraw the Notice of Group Borrowing relating to such
requested Borrowing. If such Borrower does so withdraw such Notice of Group
Borrowing, the Borrowing requested therein shall not occur and the Agent will
promptly so notify each applicable Lender. If such Borrower does not so withdraw
such Notice of Group Borrowing, the Agent will promptly so notify each
applicable Lender and such Notice of Group Borrowing shall be deemed to be a
Notice of Group Borrowing that requests a Borrowing comprised of Offshore U.S.
Dollar Loans in an aggregate amount approximately equal to the amount of the
originally requested Borrowing as expressed in U.S. Dollars rounded to a Minimum
Tranche in the Notice of Group Borrowing; and in such notice by the Agent to
each applicable Lender the Agent will state such aggregate amount of such
Borrowing in U.S. Dollars and such Lender's Pro Rata Share thereof.
(c) In the case of a proposed continuation of Offshore Currency
Loans under the Revolving Facility for an additional Interest Period pursuant to
Section 2.4, the Lenders shall be under no obligation to continue such Offshore
Currency Loans if the Agent has received notice from any of the applicable
Lenders (or, in the case of a continuation of Loans denominated in Pounds
Sterling, Euros, French francs or Deutschemarks, more than 50% of the Lenders in
the applicable Facility) by 5:00 p.m. (San Francisco time) four Business Days
prior to the day of such continuation that such Lender (or, if applicable, such
Lenders) cannot continue to provide Loans in the relevant Offshore Currency, in
which event the Agent will promptly give notice to the applicable Borrower that
the continuation of such Offshore Currency Loans in the relevant Offshore
Currency is not then available, and notice thereof also will be given promptly
by the Agent to the applicable Lenders. If the Agent shall have so notified such
Borrower that any such continuation of Offshore Currency Loans is not then
available, any Notice of Continuation/Conversion with respect thereto shall be
deemed withdrawn and such Offshore Currency Loans shall be repaid on the last
day of the Interest Period with respect to such Offshore Currency Loans.
(d) Notwithstanding anything herein to the contrary, during the
existence of an Event of Default, upon the request of the Required Revolving
Lenders, all or any part of any outstanding Offshore Currency Loans under the
Revolving Facility shall be redenominated and converted into U.S. Base Rate
Loans in U.S. Dollars with effect from the last day of the Interest Period with
respect to such Offshore Currency Loans. The Agent will
60
promptly notify DASI and each Revolving Lender of any request pursuant to the
foregoing sentence.
(e) DASI shall be entitled to request that Revolving Loans hereunder
also be permitted to be made in any other lawful currency constituting a
eurocurrency, in addition to the eurocurrencies specified in the definition of
"Offshore Currency" herein, that in the opinion of the Agent and all Revolving
Lenders is at such time freely traded in the offshore interbank foreign exchange
markets and is freely transferable and freely convertible into U.S. Dollars (an
"Agreed Alternative Currency"). DASI shall deliver to the Agent any request for
designation of an Agreed Alternative Currency not later than 9:00 a.m. (San
Francisco time) at least ten Business Days in advance of the date of any
Borrowing hereunder proposed to be made in such Agreed Alternative Currency.
Upon receipt of any such request, the Agent will promptly notify the Revolving
Lenders thereof, and each Revolving Lender will use its best efforts to respond
to such request within two Business Days of receipt thereof. Each Revolving
Lender may reject or accept such request in its sole discretion. Failure of a
Revolving Lender to respond to such request within two Business Days of receipt
thereof shall be deemed to be rejection by such Revolving Lender of such
request. The Agent will promptly notify DASI of the acceptance or rejection of
any such request.
2.6 Currency Exchange Fluctuations. Subject to Section 7.4, if on any
Computation Date the Agent shall have determined that the then outstanding
Dollar Equivalent principal amount of all Revolving Loans plus (without
duplication) the Effective Amount of all L/C Obligations exceeds the combined
Revolving Commitments (less the Schade Reserved Amount) by more than
U.S.$2,000,000 due to a change in applicable rates of exchange between U.S.
Dollars, on the one hand, and Australian Dollars, Canadian Dollars or Offshore
Currencies, on the other hand, then the Agent shall give notice to DASI that a
prepayment is required under this subsection, and the applicable Borrowers agree
thereupon to make prepayments of Loans such that, after giving effect to such
prepayment, the outstanding Dollar Equivalent amount of all Revolving Loans plus
(without duplication) the Effective Amount of all L/C Obligations does not
exceed the combined Revolving Commitments (less the Schade Reserved Amount).
2.7 Reduction or Termination of Commitments.
(a) The Revolving Commitments shall terminate on the Revolving
Commitment Termination Date.
(b) DASI may, upon not less than five Business Days' prior notice to
the Agent, (i) terminate the Commitments under any Facility or (ii) permanently
reduce the Commitments under any
61
Facility by an aggregate Dollar Equivalent amount of U.S.$3,000,000 or a higher
integral multiple of U.S.$1,000,000; provided that the combined Revolving
Commitments may not be reduced to an amount which is less than the Total
Revolving Outstandings. The Agent shall give each Lender prompt notice of its
receipt of any notice from DASI pursuant to this Section.
(c) Once reduced in accordance with this Section, no Commitment may
be increased. Any reduction of the Commitments under a Facility shall be applied
to each applicable Lender's Commitment in such Facility according to its
applicable Pro Rata Share. All accrued commitment fees in respect of the
affected Facility to the effective date of any reduction or termination of
Commitments in such Facility shall be paid on the effective date of such
reduction or termination.
2.8 Prepayments.
(a) If as of the end of any fiscal year the Senior Leverage Ratio is
greater than or equal to 3.00 to 1 or any Interim Term Loan is outstanding, the
Borrowers shall prepay Term Loans within 90 days following the end of such
fiscal year in a Dollar Equivalent amount equal to the lesser of (i) 50% of
Excess Cash Flow for such fiscal year and (ii) the minimum amount that when
applied to repay Term Loans causes the Senior Leverage Ratio to be less than
3.00 to 1 (computed on a pro forma basis as if such prepayment had been made as
of the end of such fiscal year) and, if applicable, repays the Interim Term
Loans in full, together with accrued interest on the amount prepaid and any
amounts required pursuant to Section 7.4.
(b) Concurrently with the receipt of any Net Cash Proceeds of the
sale, transfer or other disposition by DASI or any Subsidiary of any property
(including any equity in any Subsidiary, but excluding Excepted Asset Sales) to
a Person other than DASI or a Subsidiary, the Borrowers shall prepay Term Loans
in a Dollar Equivalent amount equal to the lesser of (i) 100% of such Net Cash
Proceeds and (ii) the minimum amount that when applied to repay Term Loans
causes the Senior Leverage Ratio to be less than 3.00 to 1 (computed on a pro
forma basis as if such prepayment had been made as of the end of the most
recently ended fiscal quarter) and, if applicable, repays the Interim Term Loans
in full, together with accrued interest on the amount prepaid and any amounts
required pursuant to Section 7.4.
(c) Concurrently with the receipt of any Net Cash Proceeds from the
issuance of any Subordinated Indebtedness if the Senior Leverage Ratio is
greater than or equal to 3.00 to 1 or any Interim Term Loan is outstanding, the
Borrowers shall prepay Term Loans in a Dollar Equivalent amount equal to the
lesser of (i) 100% of such Net Cash Proceeds and (ii) the minimum
62
amount that when applied to the Term Loans causes the Senior Leverage Ratio to
be less than 3.00 to 1 (computed on a pro forma basis as if such prepayment had
been made as of the end of the most recently ended fiscal quarter) and, if
applicable, repays the Interim Term Loans in full, together with accrued
interest on the amount prepaid and any amounts required pursuant to Section 7.4.
(d) Concurrently with the receipt of any Net Cash Proceeds from the
issuance of any equity securities of DASI if the Senior Leverage Ratio is
greater than or equal to 3.00 to 1 or any Interim Term Loan is outstanding, the
Borrowers shall prepay Term Loans in a Dollar Equivalent amount equal to the
lesser of (i) 100% of such Net Cash Proceeds and (ii) the minimum amount that
when applied to the Term Loans causes the Senior Leverage Ratio to be less than
3.00 to 1 (computed on a pro forma basis as if such prepayment had been made as
of the end of the most recently ended fiscal quarter) and, if applicable, repays
the Interim Term Loans in full, together with accrued interest on the amount
prepaid and any amounts required pursuant to Section 7.4.
(e) Each prepayment under the foregoing subsections 2.8(a), (b), (c)
and (d) shall be applied, first, to the Interim Term Loans and, second, pro rata
to the remaining installments of the Tranche A Term Loans and the Tranche B Term
Loans, provided that if the Interim Term Loans are repaid in full, such amount
that would otherwise be applied to prepay the Tranche B Term Loans may, with the
consent of DASI and the applicable holder of any such Tranche B Term Loan, be
applied 50% to the repayment of Tranche A Term Loans with 50% retained by the
Borrowers. Each application of a prepayment to any installment of the Term Loans
of any Facility shall be applied to such Term Loans of the different Borrowers
thereof as DASI shall specify to the Agent or, in the absence of such
specification, pro rata among such Borrowers' Term Loans of such Facility.
(f) Notwithstanding the foregoing subsections 2.8(c) and (d), any
excess (up to but not more than U.S.$100,000,000) of (i) Net Cash Proceeds of
Subordinated Indebtedness of DASI or Dura or equity securities of DASI received
on or before the Interim Term Maturity Date over (ii) U.S.$200,000,000 shall be
excluded from the calculation of mandatory prepayments under the foregoing
subsections 2.8(c) and (d) and may be retained by the Borrowers. Notwithstanding
the foregoing subsections 2.8(c) and (d), any excess (up to but not more than
U.S.$90,000,000) of (i) Net Cash Proceeds of Subordinated Indebtedness of DASI
or Dura or equity securities of DASI received on or before the Interim Term
Maturity Date over (ii) U.S.$300,000,000 shall be excluded from the calculation
of the mandatory prepayments under the foregoing subsections 2.8(c) and (d) for
a period of six months from
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receipt thereof and thereafter shall be included in the calculation of the
mandatory prepayments under the foregoing subsections 2.8(c) and (d) as if
received at the end of such six month period unless and to the extent such Net
Cash Proceeds have been applied to the repayment of Trident Subordinated Debt
(including fees, interest, expenses and premium associated therewith), provided
that during such six month period until so applied to the repayment of Trident
Subordinated Debt (including fees, interest, expenses and premium associated
therewith) the Borrowers shall maintain at all times an unused portion of the
Revolving Commitments equal to the amount of such Net Cash Proceeds, if any,
that would have been applied to prepayment of Term Loans but for this sentence
providing for a six month exclusion.
(g) Subject to Section 7.4, the Borrowers may, at any time or from
time to time, ratably prepay the Loans in whole or in part, in an aggregate
Dollar Equivalent principal amount of at least U.S.$3,000,000 and an integral
multiple of 1,000,000 units of the Applicable Currency. DASI shall deliver a
notice of prepayment in accordance with Section 14.2 to be received by the Agent
not later than (i) 9:00 a.m. (San Francisco time) two Business Days in advance
of the prepayment date if the Loans to be prepaid are Offshore U.S. Dollar
Loans, (ii) 9:00 a.m. (San Francisco time) four Business Days in advance of the
prepayment date if the Loans to be prepaid are Offshore Currency Offshore Rate
Loans, and (ii) 9:00 a.m. (Local Time) on the prepayment date if the Loans to be
prepaid are Floating Rate Loans. Such notice of prepayment shall specify the
date and amount of such prepayment and whether such prepayment is of Floating
Rate Loans, Offshore Rate Loans or a combination thereof, the applicable
Facility and the Applicable Currency. Such notice shall not thereafter be
revocable by DASI. The Agent will promptly notify each applicable Lender thereof
and of such Lender's Pro Rata Share of such prepayment. If such notice is given
by DASI, the applicable Borrower shall make such prepayment and the payment
amount specified in such notice shall be due and payable on the date specified
therein, together with, in the case of Offshore Rate Loans, accrued interest to
such date on the amount prepaid and any amounts required pursuant to Section
7.4. Each prepayment of Term Loans pursuant to this subsection (g) shall be
applied first, to the Interim Term Loans, and second, to the remaining
installments of the applicable Term Loans pro rata according to the respective
amounts of such installments.
2.9 Repayment.
(a) Dura shall repay all Interim Term Loans on the Interim Term
Maturity Date.
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(b) Dura, the Dura German Borrower, Trident, the New UK Borrower,
Adwest France S.A. and Adwest Heidemann Gruppe GmbH & Co. KG shall each repay
its Tranche A Term Loans in installments as set forth in Schedule 2.9, with the
remaining outstanding principal amount of all Tranche A Term Loans being payable
in full on the Tranche A Final Maturity Date. Dura shall repay the Tranche B
Term Loans in installments as set forth in Schedule 2.9, with the remaining
outstanding principal amount of all Tranche B Term Loans being payable in full
on the Tranche B Final Maturity Date.
(c) All outstanding Revolving Loans (including Revolving Group
Loans, Swing Line Loans, Australian Loans and Canadian Loans) shall be repaid on
the Revolving Commitment Termination Date.
2.10 Interest.
(a) Each Interim Term Loan shall bear interest on the outstanding
principal amount thereof from the applicable Borrowing Date at a rate per annum
equal to the Offshore Rate plus 2.25% or the U.S. Base Rate plus 0.75%, as the
case may be (and subject to the Borrowers' right to convert to the other Type of
Loan under Section 2.4). Each Revolving Group Loan and Tranche A Term Loan shall
bear interest on the outstanding principal amount thereof from the applicable
Borrowing Date at a rate per annum equal to the Offshore Rate plus the
Applicable Margin or the U.S. Base Rate plus the U.S. Base Rate Margin, as the
case may be (and subject to the Borrowers' right to convert to the other Type of
Loan under Section 2.4). Each Tranche B Term Loan shall bear interest on the
outstanding principal amount thereof from the applicable Borrowing Date 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 the Borrowers' right to convert to the
other Type of Loan under Section 2.4). Each Swing Line Loan shall bear interest
on the outstanding principal amount thereof from the applicable Borrowing Date
at a rate per annum equal to the applicable Floating Rate plus the applicable
Floating Rate Margin minus the Commitment Fee Rate. Each Australian Loan in
Australian Dollars shall bear interest on the outstanding principal amount
thereof from the applicable Borrowing Date at a rate per annum equal to the
Australian Bank Bill Rate plus the Applicable Margin minus the Commitment Fee
Rate or the Australian Overnight Rate plus the Other Floating Rate Margin minus
the Commitment Fee Rate, as the case may be (and subject to the Dura Australian
Borrower's right to convert to other Types of Australian Loans under Section
4.3). Each Australian Loan in U.S. Dollars shall bear interest on the
outstanding principal amount thereof from the applicable Borrowing Date at a
rate per annum equal to the U.S. Base Rate plus the U.S. Base Rate Margin minus
the Commitment Fee Rate.
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Each Canadian Loan in Canadian Dollars shall bear interest on the outstanding
principal amount thereof from the applicable Borrowing Date at a rate per annum
equal to the Canadian Offshore Rate plus the Applicable Margin minus the
Commitment Fee Rate, or the Canadian Prime Rate plus the U.S. Base Rate Margin
minus the Commitment Fee Rate, as the case may be (and subject to the applicable
Canadian Borrower's right to convert to other Types of Canadian Loans under
Section 5.3). Each Canadian Loan in U.S. Dollars shall bear interest on the
outstanding principal amount thereof from the applicable Borrowing Date at a
rate per annum equal to the BACAN U.S. Base Rate plus the U.S. Base Rate Margin
minus the Commitment Fee Rate, or the Canadian U.S. Dollar Offshore Rate plus
the Applicable Margin minus the Commitment Fee Rate, as the case may be (and
subject to the applicable Canadian Borrower's right to convert to other Types of
Canadian Loans under Section 5.3).
(b) Interest on each Loan shall be paid in arrears on each Interest
Payment Date; provided that interest on Group Loans to any U.K. Borrower
accruing prior to the U.K. Borrower Interest Deferral Date shall be paid on the
U.K. Borrower Interest Deferral Date. Interest shall also be paid on the date of
any prepayment of Loans (other than Floating Rate Loans) when required pursuant
to Section 2.8 for the portion of the Loans so prepaid. In addition, during the
existence of any Event of Default, interest on the Loans under each Facility
shall be paid on demand of the Agent at the request or with the consent of
Lenders holding more than 50% of the principal amount of the Loans under such
Facility.
(c) Notwithstanding subsections (a) and (b) of this Section, if any
amount of principal of or interest on any Loan, or any other amount payable
hereunder or under any other Loan Document, is not paid in full when due
(whether at stated maturity, by acceleration, demand or otherwise), each
Borrower agrees, to the extent permitted by applicable law, to pay interest on
such unpaid principal or other amount from the date such amount becomes due
until the date such amount is paid in full, after as well as before any entry of
judgment thereon, payable on demand, at a rate per annum equal to (i) in the
case of principal due in respect of any Loan prior to the end of an Interest
Period applicable thereto, the rate otherwise applicable to such Loan plus 2%,
and (ii) in the case of any other amount, (x) if such amount is payable in U.S.
Dollars, the U.S. Base Rate from time to time in effect plus the U.S. Base Rate
Margin plus 2%, (y) if such amount is payable in Canadian Dollars, the Canadian
Prime Rate from time to time in effect plus the U.S. Base Rate Margin plus 2%,
and (z) if such amount is payable in a currency other than U.S. Dollars and
Canadian Dollars, the Floating Rate from time to time in effect plus the Other
Floating Rate Margin plus 2%.
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(d) Anything herein to the contrary notwithstanding, the obligations
of the Borrowers to any Lender hereunder shall be subject to the limitation that
payments of interest shall not be required for any period for which interest is
computed hereunder, to the extent (but only to the extent) that contracting for
or receiving such payment by such Lender would be contrary to the provisions of
any law applicable to such Lender limiting the highest rate of interest that may
be lawfully contracted for, charged or received by such Lender, and in such
event the applicable Borrower shall pay such Lender interest at the highest rate
permitted by applicable law.
2.11 Fees. In addition to certain fees described in Section 6.8:
(a) Arrangement, Agency Fees. Dura shall pay an arrangement fee to
the Arranger for the Arranger's own account, and shall pay agency and other fees
to the Agent for the Agent's own account, as mutually agreed to in writing (the
"Fee Letters") among Dura, the Arranger and the Agent.
(b) Commitment Fees. Dura shall pay to the Agent for the account of
each Lender a commitment fee computed at a rate per annum equal to the
Commitment Fee Rate on the average daily amount of the unused portion of such
Lender's Revolving Commitment, Interim Term Commitment, Tranche A Term
Commitment and Tranche B Term Commitment. Such commitment fee shall accrue from
the Effective Date to the Revolving Commitment Termination Date, and shall be
due and payable quarterly in arrears on the last Business Day of each calendar
quarter (commencing March 31, 1999) through the Revolving Commitment Termination
Date and on any date on which Commitments to make Term Loans terminate and on
the Revolving Commitment Termination Date; provided that, in connection with any
reduction of Commitments under Section 2.7 or 2.8 or any payment in full of any
Term Loan, the accrued commitment fee calculated for the period ending on such
date shall also be paid on the date of such reduction or payment, with (in the
case of the Revolving Facility) the following quarterly payment being calculated
on the basis of the period from such reduction date to such quarterly payment
date. The commitment fees provided in this subsection shall accrue at all times
after the Effective Date, including at any time during which one or more
conditions in Article VIII are not met. For purposes of computing commitment
fees under this Section 2.11(b), outstanding Swing Line Loans, Australian Loans
and Canadian Loans shall not be deemed to be utilization of the Revolving
Commitments.
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2.12 Computation of Fees and Interest.
(a) All computations of interest for Floating Rate Loans when the
Floating Rate is determined by Bank of America's "reference rate," for Canadian
Prime Rate Loans, for Loans in Australian Dollars and for Offshore Rate Loans in
Pounds Sterling shall be made on the basis of a year of 365 or 366 days, as the
case may be, and actual days elapsed. All other computations of interest and
fees shall be made on the basis of a 360-day year and actual days elapsed (which
results in more interest and fees being paid than if computed on the basis of a
365-day year). Interest and fees shall accrue during each period during which
interest or fees are computed from the first day thereof to the last day
thereof. If the basis of accrual of interest or fees expressed in this Agreement
with respect to the National Currency Unit of a Participating Member State shall
be inconsistent with any convention or practice in the London interbank market
or other applicable interbank market, as the case may be, for the basis of
accrual of interest or fees with respect to the Euro, such convention or
practice shall replace such expressed basis, effective as of and from the date
on which such country becomes a Participating Member State; provided that if any
Offshore Currency Loan in the currency of such country is outstanding
immediately prior to such date, such replacement shall take effect, with respect
to such Loan, at the end of the then current Interest Period.
(b) Each determination of an interest rate or a Dollar Equivalent
amount by the Agent, the Australian Lender or the Canadian Lender, as the case
may be, shall be conclusive and binding on the Borrowers and the Lenders in the
absence of manifest error. The Agent will, at the request of the applicable
Borrower or any Lender, deliver to such Borrower or such Lender, as the case may
be, a statement showing the quotations used by the Agent, the Australian Lender
or the Canadian Lender, as the case may be, in determining any interest rate or
Dollar Equivalent amount.
2.13 Payments by the Borrowers.
(a) All payments to be made by the Borrowers shall be made without
set-off, recoupment or counterclaim. Except as otherwise expressly provided
herein, all payments by the Borrowers shall be made to the Agent for the account
of the applicable Lenders at the Payment Office and (i) with respect to
principal of, interest on, and any other amount relating to any Offshore
Currency Loan, shall be made in the Offshore Currency in which such Loan is
denominated or payable, (ii) with respect to principal of or interest on
Australian Loans denominated in, or any other amount denominated in Australian
Dollars, shall be made
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in Australian Dollars, (iii) with respect to principal of, interest on and any
other amount relating to any Canadian Loan denominated in Canadian Dollars,
shall be made in Canadian Dollars, and (iv) with respect to all other amounts
payable hereunder, shall be made in U.S. Dollars. Such payments shall be made in
Same Day Funds and (w) in the case of Offshore Currency payments, no later than
such time on the dates specified herein as may be determined by the Agent (and
advised in writing to DASI) to be necessary for such payment to be credited on
such date in accordance with normal banking procedures in the place of payment,
(x) in the case of any Australian Dollar payments, no later than 10:00 a.m.
(Sydney time) on the date specified herein, (y) in the case of any Canadian
Dollar payments, no later than 10:00 a.m. (Toronto time) on the date specified
herein and (z) in the case of any U.S. Dollar payments, no later than 10:00 a.m.
(San Francisco time) on the date specified herein. The Agent will promptly
distribute to each applicable Lender its Pro Rata Share (or other applicable
share as expressly provided in subsection 4.5(c), 5.5(c) or elsewhere herein) of
such payment in like funds as received. Any payment received by the Agent later
than the time specified in clause (w), (x), (y) or (z) above, as applicable,
shall be deemed to have been received on the following Business Day, and any
applicable interest or fee shall continue to accrue.
(b) Whenever any payment is due on a day other than a Business Day,
such payment shall be made on the following Business Day (unless, in the case of
an Offshore Rate Loan, an Australian Bank Bill Rate Loan, an Offshore Canadian
Loan or a Canadian U.S. Dollar Offshore Rate Loan, the result of such extension
would be to extend such due date into another calendar month, in which case such
payment shall be due on the preceding Business Day), and any such extension of
time shall be included in the computation of interest or fees, as the case may
be.
(c) Unless the Agent receives notice from the applicable Borrower
prior to the date on which any payment is due to the Lenders that such Borrower
will not make such payment in full as and when required, the Agent may assume
that such Borrower has made such payment in full to the Agent on such date in
Same Day Funds and the Agent may (but shall not be required to), in reliance
upon such assumption, distribute to each Lender on such due date an amount equal
to the amount then due such Lender. If and to the extent the applicable Borrower
has not made such payment in full to the Agent, each Lender shall repay to the
Agent on demand such amount distributed to such Lender, together with interest
thereon at (i) in the case of a payment in an Offshore Currency, the applicable
Overnight Rate, (ii) in the case of a payment in Australian Dollars, the
Australian Overnight Rate, (iii) in the case of a payment in Canadian Dollars,
the Bank of Canada Rate, or (iv) in the case of a payment in U.S.
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Dollars, the U.S. Federal Funds Rate, in each case for each day from the date
such amount is distributed to such Lender until the date repaid.
2.14 Payments by the Lenders to the Agent.
(a) Unless the Agent receives notice from a Lender on or prior to
the initial Closing Date or, with respect to any Group Borrowing after the
initial Closing Date, at least one Business Day prior to the date of such
Borrowing, that such Lender will not make available as and when required
hereunder to the Agent for the account of the applicable Borrower the amount of
that Lender's Pro Rata Share of the Group Borrowing, the Agent may assume that
such Lender has made such amount available to the Agent in Same Day Funds on the
Borrowing Date and the Agent may (but shall not be required to), in reliance
upon such assumption, make available to the applicable Borrower on such date a
corresponding amount. If and to the extent any Lender shall not have made its
full amount available to the Agent in Same Day Funds and the Agent in such
circumstances has made available to the applicable Borrower such amount, such
Lender shall on the Business Day following such Borrowing Date make such amount
available to the Agent, together with interest at (i) in the case of a payment
in an Offshore Currency, the Overnight Rate, (ii) in the case of a payment in
Australian Dollars, the Australian Overnight Rate, (iii) in the case of a
payment in Canadian Dollars, the Bank of Canada Rate, and (iv) in the case of a
payment in U.S. Dollars, at the U.S. Federal Funds Rate, in each case for each
day during such period. A notice of the Agent submitted to any Lender with
respect to amounts owing under this subsection (a) shall be conclusive, absent
manifest error. If such amount is so made available, such payment to the Agent
shall constitute such Lender's Loan as of the Borrowing Date for all purposes of
this Agreement. If such amount is not made available to the Agent on the
Business Day following the Borrowing Date, the Agent will notify DASI of such
failure to fund and, upon demand by the Agent, the applicable Borrower shall pay
such amount to the Agent for the Agent's account, together with interest thereon
for each day elapsed since the date of such Group Borrowing, at a rate per annum
equal to the interest rate applicable at the time to the Loans comprising such
Borrowing.
(b) The failure of any Lender to make any Loan on any Borrowing Date
shall not relieve any other Lender of its obligation hereunder (if any) to make
a Loan on such Borrowing Date, but no Lender shall be responsible for the
failure of any other Lender to make the Loan to be made by such other Lender on
any Borrowing Date.
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2.15 Proration of Payments.
(a) If, other than as expressly provided elsewhere herein, any
Lender shall obtain any payment or other recovery (whether voluntary,
involuntary, by application of offset, enforcement of security or otherwise) on
account of principal of or interest on any Loan or any participation therein,
its participation in any Letter of Credit or any fees in excess of its ratable
share (according to its Pro Rata Share and the funding, if any, of
participations in any Loans and L/C Obligations) of payments and other
recoveries (exclusive of payments or recoveries under Article VII or Section
14.5) obtained by all Lenders, such Lender shall purchase from the other
Lenders, in a manner to be reasonably specified by the Agent, such
participations in the Loans held by them (and, if applicable, such
sub-participations in the Australian Loans, the Canadian Loans, the Swing Line
Loans and the Letters of Credit) as shall be necessary to cause such purchasing
Lender to share the excess payment or other recovery ratably with each of them;
provided, however, that if all or any portion of the excess payment or other
recovery is thereafter recovered from such purchasing Lender, the purchase shall
be rescinded and the purchase price restored to the extent of such recovery, but
without interest.
(b) The Dollar Equivalent amount of the principal of each Offshore
Currency Loan, any L/C Obligations denominated in an Offshore Currency, and any
other amount payable by any Borrower in an Offshore Currency shall be determined
by the Agent in the case of receipt by any Lender of any payment or other
recovery which may be subject to subsection 2.15(a) (or any disgorgement by any
Lender pursuant to the proviso to such subsection), as of the date of such
receipt (or such disgorgement).
ARTICLE III
SWING LINE LOANS
3.1 Swing Line Commitment. Subject to the terms and conditions of this
Agreement, the Swing Line Lender agrees to make loans to the Borrowers (other
than the Dura Australian Borrower and the Canadian Borrowers) on a revolving
basis (each such loan, a "Swing Line Loan") from time to time on any Business
Day during the period from the initial Closing Date to the Revolving Commitment
Termination Date in an aggregate principal Dollar Equivalent amount at any one
time outstanding not to exceed U.S.$50,000,000; provided, however, that:
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(a) the Total Revolving Outstandings shall not at any time exceed
the combined Revolving Commitments (less the Schade Reserved Amount);
(b) the Total Trident Revolving Outstandings shall not at any time
exceed a Dollar Equivalent amount of U.S.$55,000,000;
(c) if the Excel Closing Date occurs prior to the Adwest Closing
Date, the Total Revolving Outstandings shall not exceed U.S. $235,000,000
at any time prior to the Adwest Closing Date;
(d) if the Adwest Closing Date occurs prior to the Excel Closing
Date, the Total Revolving Outstandings shall not exceed U.S.$225,000,000
at any time prior to the Excel Closing Date; and
(e) the Total Borrower Revolving Outstandings of any Borrower shall
not exceed the amount set forth for such Borrower on Schedule 2.1(d).
All Swing Line Loans shall be made and maintained as Floating Rate Loans. The
Agent will determine the Dollar Equivalent amount with respect to any Swing Line
Loan when made and as of the last Business Day of each month.
3.2 Borrowing Procedures for Swing Line Loans. The applicable Borrower
shall give written notice or telephonic notice (confirmed in writing) to the
Agent and the Swing Line Lender of each proposed borrowing pursuant to this
Section 3.2 in the form of a Request for Swing Line Loan not later than 9:00
a.m. (Local Time) on the proposed date of borrowing. Each such notice shall be
effective upon receipt by the Agent and the Swing Line Lender and shall specify
the date, currency and amount of borrowing. Unless the Swing Line Lender has
received written notice prior to 9:00 a.m. (Local Time) on the proposed
Borrowing Date (A) from the Agent directing the Swing Line Lender not to make
such Swing Line Loan because such borrowing is not then permitted under Section
3.1 as a result of the limitations set forth in clauses (a), (b), (c) (d) or (e)
thereof, or (B) from the Agent or any Lender that one or more of the conditions
precedent set forth in Article VIII with respect to such borrowing is not then
satisfied, the Swing Line Lender shall pay over the requested amount to the
applicable Borrower on the requested Borrowing Date. Each Swing Line Loan shall
be made on a Business Day and shall be in the Dollar Equivalent amount of at
least U.S.$500,000 and an integral multiple of 500,000 units of the Applicable
Currency. The Swing Line Lender will promptly notify the Agent of the making and
amount of each Swing Line Loan.
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3.3 Refunding of Swing Line Loans. The Swing Line Lender may, at any time
in its sole and absolute discretion, on behalf of the applicable Borrower (which
hereby irrevocably directs the Swing Line Lender to act on its behalf), request
each Revolving Lender through the Agent to make a Revolving Group Loan in an
amount equal to such Revolving Lender's Pro Rata Share of the principal amount
of the Swing Line Loans outstanding on the date such notice is given. Unless any
of the events described in subsection 12.1(f) or (g) shall have occurred (in
which event the procedures of Section 3.4 shall apply), and regardless of
whether the conditions precedent set forth in this Agreement to the making of a
Revolving Group Loan are then satisfied or the aggregate amount of such
Revolving Group Loans is not in the minimum or integral amount otherwise
required hereunder, each Revolving Lender shall make the proceeds of its Loan
available to the Agent for the account of the Swing Line Lender at the Payment
Office, as directed by the Swing Line Lender, prior to 10:00 a.m.(Local Time) in
Same Day Funds on the Business Day next succeeding the date such notice is
given. The proceeds of such Loans shall be immediately applied to repay the
outstanding Swing Line Loans. All Loans made pursuant to this Section 3.3 shall
be Floating Rate Loans (but, subject to the other provisions of this Agreement,
may be converted to Offshore Rate Loans).
3.4 Participations in Swing Line Loans.
(a) If an event described in subsection 12.1(f) or (g) occurs (or
for any reason the Revolving Lenders may not make Revolving Loans pursuant to
Section 3.3), each Revolving Lender will, upon notice from the Agent, purchase
from the Swing Line Lender (and the Swing Line Lender will sell to each
Revolving Lender) an undivided participation interest in all outstanding Swing
Line Loans in an amount equal to its Pro Rata Share of the outstanding principal
amount of the Swing Line Loans (and each Lender will immediately transfer to the
Agent, for the account of the Swing Line Lender, in immediately available funds,
the amount of its participation).
(b) Whenever, at any time after the Swing Line Lender has received
payment for any Revolving Lender's participation interest in the Swing Line
Loans pursuant to subsection 3.4(a), the Swing Line Lender receives any payment
on account thereof, the Swing Line Lender will distribute to the Agent for the
account of such Revolving Lender its participation interest in such amount
(appropriately adjusted, in the case of interest payments, to reflect the period
of time during which such Revolving Lender's participation interest was
outstanding and funded) in like funds as received; provided that in the event
that any payment received by the Swing Line Lender is required to be returned,
such Revolving Lender will return to the Agent for the account of the Swing Line
Lender any portion thereof previously distributed by the Swing Line
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Lender in like funds as such payment is required to be returned by the Swing
Line Lender.
3.5 Swing Line Participation Obligations Unconditional.
(a) Each Revolving Lender's obligation to make Loans pursuant to
Section 3.3 and/or to purchase participation interests in Swing Line Loans
pursuant to Section 3.4 shall be absolute and unconditional and shall not be
affected by any circumstance whatsoever, including (a) any set-off,
counterclaim, recoupment, defense or other right which such Revolving Lender may
have against the Swing Line Lender, any Loan Party or any other Person for any
reason whatsoever; (b) the occurrence or continuance of an Event of Default; (c)
any adverse change in the condition (financial or otherwise) of any Loan Party
or any other Person; (d) any breach of this Agreement by any Loan Party or any
other Lender; (e) any inability of any Borrower to satisfy the conditions
precedent to borrowing set forth in this Agreement on the date upon which any
Swing Line Loan is to be refunded or any participation interest therein is to be
purchased; or (f) any other circumstance, happening or event whatsoever, whether
or not similar to any of the foregoing.
(b) Notwithstanding the provisions of subsection 3.5(a), no
Revolving Lender shall be required to make any Loan to a Borrower to refund a
Swing Line Loan pursuant to Section 3.3 or to purchase a participation interest
in a Swing Line Loan pursuant to Section 3.4 if, at least three Business Days
prior to the making by the Swing Line Lender of such Swing Line Loan, the Agent
and the Swing Line Lender received written notice from such Revolving Lender
specifying that such Revolving Lender believed in good faith that one or more of
the conditions precedent to the making of such Swing Line Loan were not
satisfied (and detailing its basis for such good faith belief) and, in fact,
such conditions precedent to the making of such Swing Line Loan were not
satisfied at the time of the making of such Swing Line Loan; provided that the
obligation of such Revolving Lender to make such Revolving Loan and to purchase
such participation interest in such Swing Line Loan shall be reinstated upon the
earlier of (i) the date on which such Revolving Lender notifies the Swing Line
Lender that its prior notice has been withdrawn and (ii) the date on which all
conditions precedent to the making of such Swing Line Loan have been satisfied
(or waived by the Required Lenders or all Lenders, as applicable).
3.6 Conditions to Swing Line Loans. Notwithstanding any other provision of
this Agreement (and without limiting any other condition precedent to the making
of a Swing Line Loan), the Swing Line Lender shall not be obligated to make any
Swing Line Loan if an Event of Default or Unmatured Event of Default exists or
would result therefrom.
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ARTICLE IV
AUSTRALIAN LOANS
4.1 Dura Australian Borrowings.
(a) The Australian Lender agrees, on the terms and conditions set
forth herein, to make loans to the Dura Australian Borrower (each such loan, an
"Australian Loan") from time to time on any Business Day during the period from
the initial Closing Date to the Revolving Commitment Termination Date, in an
aggregate principal Dollar Equivalent amount at any one time outstanding not to
exceed the Australian Loans Sublimit, notwithstanding the fact that the
Australian Lender's Australian Loans, when aggregated with the other outstanding
Revolving Loans of its primary Lender and the Canadian Loans of the Canadian
Lender and (without duplication) the participation of its primary Lender in the
Effective Amount of all L/C Obligations may exceed its primary Lender's
Revolving Commitment; provided that (i) at no time shall the Total Revolving
Outstandings exceed the combined Revolving Commitments (less the Schade Reserved
Amount), (ii) if the Excel Closing Date occurs prior to the Adwest Closing Date,
the Total Revolving Outstandings shall not exceed U.S. $235,000,000 at any time
prior to the Adwest Closing Date, and (iii) if the Adwest Closing Date occurs
prior to the Excel Closing Date, the Total Revolving Outstandings shall not
exceed U.S. $225,000,000 at any time prior to the Excel Closing Date. Subject to
the other terms and conditions hereof, the Dura Australian Borrower may borrow
under this Section 4.1, prepay pursuant to Section 4.4 and reborrow pursuant to
this Section 4.1 from time to time.
(b) The Agent will determine the Dollar Equivalent amount with
respect to any (i) Australian Loan as of the requested Borrowing Date, (ii)
outstanding Australian Loans as of the last Business Day of each month and (iii)
outstanding Australian Loans on any date on which the Australian Loans Sublimit
is reduced in accordance with the definition thereof.
4.2 Procedure for Dura Australian Borrowings.
(a) Each Australian Borrowing shall be made upon the Dura Australian
Borrower's irrevocable written notice delivered to the Agent and the Australian
Lender in the form of a Notice of Australian Borrowing, which notice must be
received by the Agent and the Australian Lender prior to (i) 10:00 a.m. (Sydney
time) three Business Days prior to the requested Borrowing Date, in the case of
Australian Bank Bill Rate Loans; (ii) 10:00 a.m. (Sydney time) three Business
Days prior to the requested Borrowing Date, in the case of Australian U.S.
Dollar Loans; and (iii) 10:00 a.m. (Sydney time) on the requested Borrowing
Date, in the case of
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Australian Floating Rate Loans (or in the case of each of the foregoing clauses
(i), (ii) and (iii), such later time or date as the Australian Lender may
approve) specifying:
(A) the amount of the Australian Borrowing, which shall
not be less than the Minimum Tranche;
(B) the requested Borrowing Date, which shall be a
Business Day;
(C) the currency (Australian Dollars or U.S. Dollars)
and Type of Loans comprising the Australian Borrowing; and
(D) in the case of a Borrowing of Australian Bank Bill
Rate Loans, the duration of the Interest Period therefor.
(b) Unless the Australian Lender has received written notice prior
to 10:00 a.m. (Sydney time) on the proposed Borrowing Date (A) from the Agent
directing the Australian Lender not to make such Australian Loan because such
borrowing is not permitted under Section 4.1(a) or (B) from the Agent or any
Lender that one or more of the conditions precedent set forth in Article VIII
with respect to such borrowing is not then satisfied, the proceeds of any
Australian Loan will be made available to the Dura Australian Borrower by the
Australian Lender at the Payment Office by crediting the account of the Dura
Australian Borrower on the books of the Australian Lender.
(c) After giving effect to any Australian Borrowing, there may not
be more than three different Interest Periods in effect in respect of all
Australian Loans then outstanding.
4.3 Conversion and Continuation Elections for Dura Australian Borrowings.
(a) The Dura Australian Borrower may, upon irrevocable written
notice to the Agent and the Australian Lender in accordance with subsection
4.3(b):
(i) elect, as of any Business Day, in the case of an
Australian Floating Rate Loan, or as of the last day of the applicable
Interest Period, in the case of an Australian Bank Bill Rate Loan, to
convert such Australian Loan (or any part thereof in an amount not less
than the Minimum Tranche) into the other Type of Australian Loans which is
permitted hereunder in Australian Dollars; or
(ii) elect, as of the last day of the applicable Interest
Period, to continue any Loans having an Interest
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Period expiring on such day (or any part thereof in an amount not less
than the Minimum Tranche) for a new Interest Period;
provided that if at any time the amount of any Australian Bank Bill Rate Loan is
reduced, by payment, prepayment or conversion of part thereof, to be less than
the Minimum Tranche, such Australian Bank Bill Rate Loan shall automatically
convert into an Australian Floating Rate Loan.
(b) The Dura Australian Borrower shall deliver a Notice of
Conversion/Continuation to be received by the Agent and the Australian Lender
not later than (i) 10:00 a.m. (Sydney time) at least three Business Days prior
to the Conversion/Continuation Date, if an Australian Loan is to be converted
into or continued as an Australian Bank Bill Loan; and (ii) 10:00 a.m. (Sydney
time) on the Conversion/Continuation Date, if an Australian Loan is to be
converted into an Australian Floating Rate Loan (or, in the case of the
foregoing clauses (i) and (ii), such later time and date as the Australian
Lender may approve), specifying:
(A) the proposed Conversion/Continuation Date;
(B) the amount of the Australian Loan to be converted or
continued;
(C) the Type of Australian Loans resulting from the
proposed conversion or continuation; and
(D) other than in the case of conversion into an
Australian Floating Rate Loan, the duration of the requested
Interest Period.
(c) If upon the expiration of any Interest Period applicable to
Australian Bank Bill Rate Loan, the Dura Australian Borrower has failed to
select timely a new Interest Period to be applicable to such Australian Bank
Bill Rate Loan, the Dura Australian Borrower shall be deemed to have elected to
convert such Australian Bank Bill Rate Loan into an Australian Floating Rate
Loan effective as of the expiration date of such Interest Period.
(d) Unless the Required Lenders otherwise agree, during the
existence of an Event of Default or Unmatured Event of Default, the Dura
Australian Borrower may not elect to have an Australian Loan converted into or
continued as an Australian Bank Bill Rate Loan.
(e) After giving effect to any conversion or continuation of an
Australian Loan, there may not be more than three different Interest Periods in
effect in respect of all Australian Loans together then outstanding.
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4.4 Prepayments of Australian Loans. Subject to Section 7.4, the Dura
Australian Borrower may, at any time or from time to time, ratably prepay
Australian Loans in whole or in part, in an aggregate principal amount of (x) in
the case of Australian Loans in Australian Dollars, at least A$500,000 and an
integral multiple of A$250,000, or (y) in the case of Australian Loans in U.S.
Dollars, at least U.S. $500,000 or a higher integral multiple of U.S. $250,000,
or such other amount that is acceptable to the Australian Lender. The Dura
Australian Borrower shall deliver a notice of prepayment in accordance with
Section 14.2 to be received by the Agent and the Australian Lender not later
than (i) 10:00 a.m. (Sydney time) at least two Business Days in advance of the
prepayment date if the Loan to be prepaid is an Australian Bank Bill Rate Loan,
(ii) 10:00 a.m. (Sydney time) at least three Business Days in advance of the
prepayment date if the Loan to be prepaid is an Australian U.S. Dollar Loan, and
(iii) 10:00 a.m.(Sydney time) on the prepayment date if the Loan to be prepaid
is an Australian Floating Rate Loan (or in the case of each of the foregoing
clauses (i), (ii) and (iii), such later time or date as the Australian Lender
may approve). Such notice of prepayment shall specify the date and amount of
such prepayment and the particular Loan or Loans being prepaid. Such notice
shall not thereafter be revocable by the Dura Australian Borrower. If such
notice is given by the Dura Australian Borrower, the Dura Australian Borrower
shall make such prepayment and the payment amount specified in such notice shall
be due and payable on the date specified therein, together with (in the case of
an Australian Bank Bill Rate Loan) accrued interest to such date on the amount
prepaid and any amounts required pursuant to Section 7.4.
4.5 Participations in Australian Loans.
(a) Each Revolving Lender agrees that it shall at all times have a
participation in, and acknowledges that it is irrevocably and unconditionally
obligated, upon receipt of notice that the Agent has received a Australian
Participation Funding Notice, to fund (or to cause an Affiliate to fund) its
participation in, each outstanding Australian Loan in an amount equal to its Pro
Rata Share of the amount of such Australian Loan.
(b) The Agent shall promptly notify the Australian Lender and each
Revolving Lender of its receipt of a Australian Participation Funding Notice.
Promptly upon receipt of such Notice, each Revolving Lender shall (or shall
cause an Affiliate to) make available to the Australian Lender an amount in
Australian Dollars and in Same Day Funds equal to its Pro Rata Share of all
outstanding Australian Loans (it being understood that the primary Lender for
the Australian Lender shall not be obligated to make any amount available to the
Australian Lender). If any Revolving Lender so notified fails to make available
to the Australian Lender for the account of the Australian Lender the full
amount of such
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Revolving Lender's participations in all Australian Loans by 10:00 a.m.(Sydney
time) on the date of its receipt of such notice from the Agent (or on the
Business Day following receipt of such notice if such notice is received after
10:00 a.m.(Sydney time) on any Business Day), then interest shall accrue on such
Revolving Lender's obligation to fund such participations, from the date such
obligation became due to the date such Revolving Lender pays such obligations in
full, at a rate per annum equal to the Australian Overnight Rate in effect from
time to time during such period.
(c) From and after the date on which the Australian Lender has
received notice from the Agent of its receipt of an Australian Participation
Funding Notice, all funds received by the Australian Lender in payment of the
Australian Loans, interest thereon and other amounts payable in respect thereof
shall be distributed by the Australian Lender, in the same funds as those
received by the Australian Lender, to all Revolving Lenders in accordance with
their Pro Rata Shares (i.e., giving effect to the funding of participations
pursuant to this Section 4.5), except that the Pro Rata Share of such funds of
any Revolving Lender that has not funded its participations as provided herein
shall be distributed to the Australian Lender.
(d) If the Agent or the Australian Lender is required at any time to
return to any Borrower, or to a trustee, receiver, liquidator or custodian, or
any official in any Insolvency Proceeding, any portion of any payment made by
such Borrower to the Agent or the Australian Lender in respect of any Australian
Loan or interest or fee thereon, each Revolving Lender shall, on demand of the
Agent, forthwith return to the Australian Lender the amount of its Pro Rata
Share of the amount so returned by the Agent or the Australian Lender plus
interest thereon from the date such demand is made to the date such amount is
returned by such Revolving Lender to the Australian Lender, at a rate per annum
equal to the Australian Overnight Rate from time to time in effect.
(e) The Required Revolving Lenders, the Australian Lender and the
Agent may agree on any other reasonable method (such as making assignments of
Australian Loans) for sharing the risks of Australian Loans ratably among all
Revolving Lenders according to their Pro Rata Shares so long as such method does
not materially disadvantage any Revolving Lender.
(f) The Australian Lender is not a trustee for any Revolving Lender
nor does any Revolving Lender's participation in any Australian Loan constitute
a proprietary interest in such Australian Loan.
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ARTICLE V
CANADIAN LOANS
5.1 Canadian Borrowings.
(a) The Canadian Lender agrees, on the terms and conditions set
forth herein, to make loans to the Canadian Borrowers (each such loan, a
"Canadian Loan") from time to time on any Business Day during the period from
the initial Closing Date to the Revolving Commitment Termination Date, in an
aggregate principal Dollar Equivalent amount at any one time outstanding not to
exceed (i) the Dura Canadian Loans Sublimit for all Dura Canadian Loans and (ii)
the Trident Canadian Loans Sublimit for all Trident Canadian Loans,
notwithstanding the fact that the Canadian Lender's Canadian Loans, when
aggregated with the other outstanding Revolving Loans of its primary Lender and
the Australian Loans of the Australian Lender and (without duplication) the
participation of its primary Lender in the Effective Amount of all L/C
Obligations, may exceed its related primary Lender's Revolving Commitment;
provided that (i) at no time shall the Total Revolving Outstandings exceed the
combined Revolving Commitments (less the Schade Reserved Amount), (ii) if the
Excel Closing Date occurs prior to the Adwest Closing Date, the Total Revolving
Outstandings shall not exceed U.S. $235,000,000 at any time prior to the Adwest
Closing Date, (iii) if the Adwest Closing Date occurs prior to the Excel Closing
Date, the Total Revolving Outstandings shall not exceed U.S. $225,000,000 at any
time prior to the Excel Closing Date, and (iv) at no time shall the Total
Trident Revolving Outstandings exceed U.S. $55,000,000. Subject to the other
terms and conditions hereof, the Canadian Borrowers may borrow under this
Section 5.1, prepay pursuant to Section 5.4 and reborrow pursuant to this
Section 5.1 from time to time.
(b) The Agent will determine the Dollar Equivalent amount with
respect to any (i) Canadian Loan as of the requested Borrowing Date, (ii)
outstanding Canadian Loans as of the last Business Day of each month, and (iii)
outstanding Canadian Loans on any date on which the Dura Canadian Loans Sublimit
or the Trident Canadian Loans Sublimit is reduced in accordance with the
respective definitions thereof.
5.2 Procedure for Canadian Borrowings.
(a) Each Canadian Borrowing shall be made upon the applicable
Canadian Borrower's irrevocable written notice delivered to the Agent and the
Canadian Lender in the form of a Notice of Canadian Borrowing, which notice must
be received by the Agent and the Canadian Lender prior to (i) 10:00 a.m.
(Toronto time) two Business Days prior to the requested Borrowing Date, in the
case of
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Offshore Canadian Loans (unless the Dow Jones Markets (Telerate)-based Canadian
Offshore Rate is not available, in which case, three Business Days prior to the
requested Borrowing Date); (ii) 10:00 a.m. (Toronto time) two Business Days
prior to the requested Borrowing Date, in the case of Canadian U.S. Dollar
Offshore Rate Loans (unless the Dow Jones Markets (Telerate)-based Canadian U.S.
Dollar Offshore Rate is not available, in which case, three Business Days prior
to the requested Borrowing Date); and (iii) 10:00 a.m. (Toronto time) on the
requested Borrowing Date, in the case of Canadian Prime Rate Loans or Canadian
U.S. Dollar Base Rate Loans (or, in the case of the foregoing clauses (i), (ii)
and (iii), such later times and dates as the Canadian Lender may approve),
specifying:
(A) the amount of the Canadian Borrowing, which shall
not be less than the Minimum Tranche;
(B) the requested Borrowing Date, which shall be a
Business Day;
(C) the currency (Canadian Dollars or U.S. Dollars) and
Type of Loans comprising the Canadian Borrowing; and
(D) in the case of a Borrowing of Offshore Canadian
Loans or Canadian U.S. Dollar Offshore Rate Loans, the duration of
the Interest Period therefor.
(b) Unless the Canadian Lender has received written notice prior to
(or such later time or date as the Canadian Lender may approve) 10:00 a.m.
(Toronto time) on the proposed Borrowing Date (A) from the Agent directing the
Canadian Lender not to make such Canadian Loan because such borrowing is not
permitted under Section 5.1(a) or (B) from the Agent or any Lender that one or
more of the conditions precedent set forth in Article VIII with respect to such
borrowing is not then satisfied, the proceeds of any Canadian Loan will then be
made available to the applicable Canadian Borrower by the Canadian Lender at the
Payment Office by crediting the account of such Canadian Borrower on the books
of the Canadian Lender.
(c) After giving effect to any Canadian Borrowing, there may not be
more than five different Interest Periods in effect in respect of all Canadian
Loans then outstanding.
5.3 Conversion and Continuation Elections for Canadian Borrowings. (a)
Each Canadian Borrower may, upon irrevocable written notice to the Agent and the
Canadian Lender in accordance with subsection 5.3(b):
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(i) elect, as of any Business Day, in the case of a Canadian
Prime Rate Loan or a Canadian U.S. Dollar Base Rate Loan, or as of the
last day of the applicable Interest Period, in the case of an Offshore
Canadian Loan or a Canadian U.S. Dollar Offshore Rate Loan, to convert any
Canadian Loan of such Canadian Borrower (or any part thereof in an amount
not less than the Minimum Tranche) into Canadian Loan of the other Type
which is available in the same currency; or
(ii) elect, as of the last day of the applicable Interest
Period, to continue any Canadian Loans of such Canadian Borrower having an
Interest Period expiring on such day (or any part thereof in an amount not
less than the Minimum Tranche) as a Loan of the same Type in the same
currency with a new Interest Period;
provided that if at any time the amount of any Offshore Canadian Loan is
reduced, by payment, prepayment or conversion of part thereof, to be less than
the Minimum Tranche, such Canadian Loan shall automatically convert into a
Canadian Prime Rate Loan and if at any time the amount of any Canadian U.S.
Dollar Offshore Rate Loan is reduced, by payment, prepayment or conversion of
part thereof, to be less than the Minimum Tranche, such Canadian U.S. Dollar
Offshore Rate Loan shall automatically convert into Canadian U.S. Dollar Base
Rate Loan.
(b) The applicable Canadian Borrower shall deliver a Notice of
Conversion/Continuation to be received by the Agent and the Canadian Lender not
later than (i) 10:00 a.m. (Toronto time) at least two Business Days prior to the
Conversion/Continuation Date, if a Canadian Loan is to be converted into or
continued as an Offshore Canadian Loan (unless the Dow Jones Markets
(Telerate)-based Canadian Offshore Rate is not available, in which case, three
Business Days prior to the Conversion/Continuation Date); (ii) 10:00 a.m.
(Toronto time) at least two Business Days prior to the Conversion/Continuation
Date, if a Canadian Loan is to be converted into or continued as a Canadian U.S.
Dollar Offshore Rate Loan (unless the Dow Jones Markets (Telerate)-based
Canadian U.S. Dollar Offshore Rate is not available, in which case, three
Business Days prior to the Conversion/Continuation Date); and (iii) 10:00 a.m.
(Toronto time) on the Conversion/Continuation Date, if a Canadian Loan is to be
converted into a Canadian Prime Rate Loan or a Canadian U.S. Dollar Base Rate
Loan (or, in the case of the foregoing clauses (i), (ii) and (iii), such later
times and dates as the Canadian Lender may approve) specifying:
(A) the proposed Conversion/Continuation Date;
(B) the amount of the Canadian Loan to be converted or
continued;
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(C) the Type of Canadian Loan resulting from the
proposed conversion or continuation; and
(D) other than in the case of conversions into a
Canadian Prime Rate Loan or a Canadian U.S. Dollar Base Rate Loan,
the duration of the requested Interest Period.
(c) If upon the expiration of any Interest Period applicable to an
Offshore Canadian Loan, the applicable Canadian Borrower has failed to select
timely a new Interest Period to be applicable to such Offshore Canadian Loan,
such Canadian Borrower shall be deemed to have elected to convert such Offshore
Canadian Loan into a Canadian Prime Rate Loan effective as of the expiration
date of such Interest Period. If upon the expiration of any Interest Period
applicable to a Canadian U.S. Dollar Offshore Rate Loan, the applicable Canadian
Borrower has failed to select timely a new Interest Period to be applicable to
such Canadian U.S. Dollar Offshore Rate Loan, such Canadian Borrower shall be
deemed to have elected to convert such Canadian U.S. Dollar Offshore Rate Loan
into a Canadian U.S. Dollar Base Rate Loan effective as of the expiration date
of such Interest Period.
(d) Unless the Required Lenders otherwise agree, during the
existence of an Event of Default or Unmatured Event of Default, no Canadian
Borrower may elect to have a Canadian Loan converted into or continued as an
Offshore Canadian Loan or a Canadian U.S. Dollar Offshore Rate Loan.
(e) After giving effect to any conversion or continuation of a
Canadian Loan, there may not be more than five different Interest Periods in
effect in respect of all Canadian Loans together then outstanding.
5.4 Prepayments of Canadian Loans. Subject to Section 7.4, a Canadian
Borrower may, at any time or from time to time, ratably prepay its Canadian
Loans in whole or in part, in an aggregate principal amount of (x) in the case
of Canadian Loans in Canadian Dollars, at least C$1,000,000 and an integral
multiple of C$500,000, or (y) in the case of Canadian Loans in U.S. Dollars, at
least U.S.$500,000 and an integral multiple of U.S.$250,000, or (z) in each
case, such other amount that is acceptable to the Canadian Lender. Such Canadian
Borrower shall deliver a notice of prepayment in accordance with Section 14.2 to
be received by the Agent and the Canadian Lender not later than (i) 10:00 a.m.
(Toronto time) at least two Business Days in advance of the prepayment date if
the Loans to be prepaid are Offshore Canadian Loans, and (ii) 10:00 a.m.(Toronto
time) on the prepayment date if the Loans to be prepaid are Canadian Prime Rate
Loans or Canadian U.S. Dollar Base Rate Loans (or, in the case of the foregoing
clauses (i) and (ii), such later times and dates as the Canadian Lender may
approve). Such notice of prepayment shall specify the
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date and amount of such prepayment and the particular Loan or Loans being
prepaid. Such notice shall not thereafter be revocable by such Canadian
Borrower. If such notice is given by a Canadian Borrower, such Canadian Borrower
shall make such prepayment and the payment amount specified in such notice shall
be due and payable on the date specified therein, together with (in the case of
an Offshore Canadian Loan or a Canadian U.S. Dollar Offshore Rate Loan) accrued
interest to each such date on the amount prepaid and any amounts required
pursuant to Section 7.4.
5.5 Participations in Canadian Loans.
(a) Each Revolving Lender agrees that it shall at all times have a
participation in, and acknowledges that it is irrevocably and unconditionally
obligated, upon receipt of notice that the Agent has received a Canadian
Participation Funding Notice, to fund (or to cause an Affiliate to fund) its
participation in, each outstanding Canadian Loan in an amount equal to its Pro
Rata Share of the amount of such Canadian Loan.
(b) The Agent shall promptly notify the Canadian Lender and each
Revolving Lender of its receipt of a Canadian Participation Funding Notice.
Promptly upon receipt of such Notice, each Revolving Lender shall (or shall
cause an Affiliate to) make available to the Canadian Lender an amount in
Canadian Dollars and/or U.S. Dollars, as the case may be, and in Same Day Funds
equal to its Pro Rata Share of all outstanding Canadian Loans (it being
understood that the primary Lender for the Canadian Lender shall not be
obligated to make any amount available to the Canadian Lender). If any Revolving
Lender so notified fails to make available to the Canadian Lender the full
amount of such Revolving Lender's participations in all Canadian Loans by 3:00
p.m. (Toronto time) on the date of its receipt of such notice from the Agent (or
on the Business Day following receipt of such notice if such notice is received
after 1:00 p.m. (Toronto time) on any Business Day), then interest shall accrue
on such Revolving Lender's obligation to fund such participations, from the date
such obligation became due to the date such Revolving Lender pays such
obligations in full, at a rate per annum equal to (in respect of Canadian Dollar
obligations) the Bank of Canada Rate and (in respect of U.S. Dollar obligations)
the U.S. Federal Funds Rate, in each case in effect from time to time during
such period.
(c) From and after the date on which the Canadian Lender has
received notice from the Agent of its receipt of a Canadian Participation
Funding Notice, all funds received by the Canadian Lender in payment of the
Canadian Loans, interest thereon and other amounts payable in respect thereof
shall be distributed by the Canadian Lender, in the same funds as those received
by the Canadian Lender, to all Revolving Lenders in accordance with their Pro
Rata Shares (i.e., giving effect to the funding of
84
participations pursuant to this Section 5.5), except that the Pro Rata Share of
such funds of any Revolving Lender that has not funded its participations as
provided herein shall be distributed to the Canadian Lender.
(d) If the Agent or the Canadian Lender is required at any time to
return to any Borrower, or to a trustee, receiver, liquidator or custodian, or
any official in any Insolvency Proceeding, any portion of any payment made by
such Borrower to the Agent or the Canadian Lender in respect of any Canadian
Loan or interest or fee thereon, each Revolving Lender shall, on demand of the
Agent, forthwith return to the Canadian Lender for the account of the Canadian
Lender the amount of its Pro Rata Share of the amount so returned by the Agent
or the Canadian Lender plus interest thereon from the date such demand is made
to the date such amount is returned by such Revolving Lender to the Canadian
Lender, at a rate per annum equal to (in respect of Canadian Dollar obligations)
the Bank of Canada Rate and (in respect of U.S. Dollar obligations) the U.S.
Federal Funds Rate, in each case from time to time in effect.
(e) The Required Revolving Lenders, the Canadian Lender and the
Agent may agree on any other reasonable method (such as making assignments of
Canadian Loans) for sharing the risks of Canadian Loans ratably among all
Revolving Lenders according to their Pro Rata Shares so long as such method does
not materially disadvantage any Revolving Lender.
ARTICLE VI
THE LETTERS OF CREDIT
6.1 The Letter of Credit Subfacility.
(a) On the terms and conditions set forth herein, (i) the Issuing
Lender agrees, (A) from time to time on any Business Day during the period from
the initial Closing Date to the Revolving Commitment Termination Date to issue
Letters of Credit for the account of any Borrower (or, if a Letter of Credit is
for the account of a Subsidiary that is not a Borrower, jointly for the account
of a Borrower and such Subsidiary), and to amend or renew Letters of Credit
previously issued by it, in accordance with subsections 6.2(c) and 6.2(d), and
(B) to honor properly drawn drafts under the Letters of Credit; and (ii) the
Revolving Lenders severally agree to participate in Letters of Credit Issued for
the account of any Borrower (including any Letter of Credit issued jointly for
the account of a Borrower and any Subsidiary); provided that the Issuing Lender
shall not be obligated to Issue, and no Revolving Lender shall be obligated to
participate in, any Letter
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of Credit if as of the date of Issuance of such Letter of Credit (the "Issuance
Date"):
(1) the Total Revolving Outstandings exceed the combined Revolving
Commitments (less the Schade Reserved Amount),
(2) the participation of such Revolving Lender in the Effective
Amount of all L/C Obligations of the Borrowers plus (without duplication)
the outstanding principal Dollar Equivalent amount of the Revolving Group
Loans of such Revolving Lender plus such Revolving Lender's Pro Rata Share
of the Australian Loans Sublimit, the Dura Canadian Loans Sublimit and the
Trident Canadian Loans Sublimit plus such Revolving Lender's Pro Rata
Share of all Swing Line Loans exceeds such Revolving Lender's Revolving
Commitment,
(3) the Effective Amount of all L/C Obligations of the Borrowers
exceeds the L/C Commitment,
(4) if the Excel Closing Date occurs prior to the Adwest Closing
Date, the Total Revolving Outstandings exceed U.S. $235,000,000 at any
time prior to the Adwest Closing Date,
(5) if the Adwest Closing Date occurs prior to the Excel Closing
Date, the Total Revolving Outstandings exceed U.S. $225,000,000 at any
time prior to the Excel Closing Date,
(6) the Total Trident Revolving Outstandings exceed U.S.$55,000,000,
or
(7) the Total Borrower Revolving Outstandings of the related
Borrower exceed the limit for such Borrower set forth in Schedule 2.1(d).
Within the foregoing limits, and subject to the other terms and conditions
hereof, the Borrowers' ability to obtain Letters of Credit shall be fully
revolving, and, accordingly, the Borrowers may, during the foregoing period,
obtain Letters of Credit to replace Letters of Credit which have expired or
which have been drawn upon and reimbursed. The Agent will determine the Dollar
Equivalent amount of the L/C Obligations with respect to any Letter of Credit
when issued, when drawn upon and as of the last Business Day of each month.
(b) The Issuing Lender is under no obligation to Issue any Letter of
Credit if:
(i) any order, judgment or decree of any Governmental
Authority or arbitrator shall by its terms purport to enjoin or restrain
the Issuing Lender from Issuing such Letter of Credit, or any Requirement
of Law applicable to
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the Issuing Lender or any request or directive (whether or not having the
force of law) from any Governmental Authority with jurisdiction over the
Issuing Lender shall prohibit, or request that the Issuing Lender refrain
from, the Issuance of letters of credit generally or such Letter of Credit
in particular or shall impose upon the Issuing Lender with respect to such
Letter of Credit any restriction, reserve or capital requirement (for
which the Issuing Lender is not otherwise compensated hereunder) not in
effect on the initial Closing Date, or shall impose upon the Issuing
Lender any unreimbursed loss, cost or expense which was not applicable on
the initial Closing Date and which the Issuing Lender in good faith deems
material to it;
(ii) the Issuing Lender has received written notice from any
Lender, the Agent or any Borrower, on or prior to the Business Day prior
to the requested date of Issuance of such Letter of Credit, that one or
more of the applicable conditions contained in Article VIII is not then
satisfied;
(iii) the expiry date of any requested Letter of Credit is (A)
more than 366 days (or 180 days in the case of a documentary commercial
Letter of Credit) after the date of such Issuance, unless the Required
Revolving Lenders have approved such expiry date in writing, or (B) after
the scheduled Revolving Commitment Termination Date, unless all of the
Revolving Lenders have approved such expiry date in writing;
(iv) any requested Letter of Credit does not provide for
drafts, or is not otherwise in form and substance acceptable to the
Issuing Lender, or the Issuance of a Letter of Credit shall violate any
applicable policies of the Issuing Lender; or
(v) such Letter of Credit is denominated in a currency other
than U.S. Dollars or an Offshore Currency.
6.2 Issuance, Amendment and Renewal of Letters of Credit.
(a) Each Letter of Credit shall be Issued upon the irrevocable written
request of the applicable Borrower received by the Issuing Lender (with a copy
sent by such Borrower to the Agent) at least three Business Days (or such
shorter time as the Issuing Lender may agree in a particular instance in its
sole discretion) prior to the proposed date of Issuance. Each such request for
Issuance of a Letter of Credit shall be by facsimile, confirmed immediately in
an original writing, in the form of an L/C Application, and shall specify in
form and detail reasonably satisfactory to the Issuing Lender: (i) the proposed
date of Issuance of the Letter of Credit (which shall be a Business Day);
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(ii) the face amount of the Letter of Credit; (iii) the expiry date of the
Letter of Credit; (iv) the name and address of the beneficiary thereof; (v) the
documents to be presented by the beneficiary of the Letter of Credit in case of
any drawing thereunder; (vi) the full text of any certificate to be presented by
the beneficiary in case of any drawing thereunder; and (vii) such other matters
as the Issuing Lender may require.
(b) At least two Business Days prior to the Issuance of any Letter
of Credit, the Issuing Lender will confirm with the Agent (by telephone or in
writing) that the Agent has received a copy of the L/C Application or L/C
Amendment Application from the applicable Borrower and, if not, the Issuing
Lender will provide the Agent with a copy thereof. Unless the Issuing Lender has
received, on or before the Business Day immediately preceding the date the
Issuing Lender is to issue a requested Letter of Credit, (A) notice from the
Agent directing the Issuing Lender not to issue such Letter of Credit because
such issuance is not then permitted under subsection 6.1(a) as a result of the
limitations set forth in clauses (1) through (7) thereof or (B) a notice
described in subsection 6.1(b)(ii), then, subject to the terms and conditions of
this Agreement, the Issuing Lender shall, on the requested date, issue a Letter
of Credit for the account of the applicable Borrower (or jointly for the account
of such Borrower and the applicable Subsidiary) in accordance with the Issuing
Lender's usual and customary business practices.
(c) From time to time while a Letter of Credit is outstanding and
prior to the Revolving Commitment Termination Date, the Issuing Lender will,
upon the written request of the applicable Borrower received by the Issuing
Lender (with a copy sent by the applicable Borrower to the Agent) at least five
days (or such shorter time as the Issuing Lender may agree in a particular
instance in its sole discretion) prior to the proposed date of amendment, amend
any Letter of Credit issued by it. Each such request for amendment of a Letter
of Credit shall be made by facsimile, confirmed immediately in an original
writing, made in the form of an L/C Amendment Application and shall specify in
form and detail reasonably satisfactory to the Issuing Lender: (i) the Letter of
Credit to be amended; (ii) the proposed date of amendment of the Letter of
Credit (which shall be a Business Day); (iii) the nature of the proposed
amendment; and (iv) such other matters as the Issuing Lender may reasonably
require. The Issuing Lender shall be under no obligation to amend any Letter of
Credit if: (A) the Issuing Lender would have no obligation at such time to issue
such Letter of Credit in its amended form under the terms of this Agreement; or
(B) the beneficiary of any such Letter of Credit does not accept the proposed
amendment to the Letter of Credit. The Agent will promptly notify the Revolving
Lenders of the receipt by it of any L/C Application or L/C Amendment
Application.
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(d) The Issuing Lender and the Revolving Lenders agree that, while a
Letter of Credit is outstanding and prior to the Revolving Commitment
Termination Date, at the option of the applicable Borrower and upon the written
request of such Borrower received by the Issuing Lender (with a copy sent by
such Borrower to the Agent) at least four Business Days (or such shorter time as
the Issuing Lender may agree in a particular instance in its sole discretion)
prior to the proposed date of notification of renewal, the Issuing Lender shall
be entitled to authorize the automatic renewal of any Letter of Credit issued by
it. Each such request for renewal of a Letter of Credit shall be made by
facsimile, confirmed immediately in an original writing, in the form of an L/C
Amendment Application, and shall specify in form and detail reasonably
satisfactory to the Issuing Lender: (i) the Letter of Credit to be renewed; (ii)
the proposed date of notification of renewal of the Letter of Credit (which
shall be a Business Day); (iii) the revised expiry date of the Letter of Credit;
and (iv) such other matters as the Issuing Lender may reasonably require. The
Issuing Lender shall be under no obligation so to renew any Letter of Credit if:
(A) the Issuing Lender would have no obligation at such time to issue or amend
such Letter of Credit in its renewed form under the terms of this Agreement; or
(B) the beneficiary of any such Letter of Credit does not accept the proposed
renewal of the Letter of Credit. If any outstanding Letter of Credit shall
provide that it shall be automatically renewed unless the beneficiary thereof
receives notice from the Issuing Lender that such Letter of Credit shall not be
renewed, and if at the time of renewal the Issuing Lender would be entitled to
authorize the automatic renewal of such Letter of Credit in accordance with this
subsection 6.2(d) upon the request of the applicable Borrower but the Issuing
Lender shall not have received any L/C Amendment Application from such Borrower
with respect to such renewal or other written direction by such Borrower with
respect thereto, the Issuing Lender shall nonetheless be permitted to allow such
Letter of Credit to renew, and such Borrower and the Revolving Lenders hereby
authorize such renewal, and, accordingly, the Issuing Lender shall be deemed to
have received an L/C Amendment Application from such Borrower requesting such
renewal.
(e) The Issuing Lender may, at its election (or as required by the
Agent at the direction of the Required Revolving Lenders), deliver any notices
of termination or other communications to any Letter of Credit beneficiary or
transferee, and take any other action as necessary or appropriate, at any time
and from time to time, in order to cause the expiry date of such Letter of
Credit to be a date not later than the Revolving Commitment Termination Date.
(f) This Agreement shall control in the event of any conflict with
any L/C-Related Document (other than any Letter of Credit).
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(g) The Issuing Lender will also deliver to the Agent, concurrently
or promptly following its delivery of a Letter of Credit, or amendment to or
renewal of a Letter of Credit, to an advising bank or a beneficiary, a true and
complete copy of each such Letter of Credit or amendment to or renewal of a
Letter of Credit.
6.3 Participations, Drawings and Reimbursements.
(a) Immediately upon the Issuance of each Letter of Credit, each
Revolving Lender shall be deemed to, and hereby irrevocably and unconditionally
agrees to, purchase from the Issuing Lender a participation in such Letter of
Credit and each drawing thereunder in an amount equal to the product of (i) the
applicable Pro Rata Share of such Revolving Lender times (ii) the maximum amount
available to be drawn under such Letter of Credit and the amount of such
drawing, respectively.
(b) In the event of any request for a drawing under a Letter of
Credit by the beneficiary or transferee thereof, the Issuing Lender will
promptly notify the applicable Borrower. Such Borrower shall reimburse the
Issuing Lender prior to 10:00 a.m.(Local Time), on each date that any amount is
paid by the Issuing Lender under any Letter of Credit (each such date, an "Honor
Date"), in an amount equal to the amount so paid by the Issuing Lender. In the
event such Borrower fails to reimburse the Issuing Lender for the full amount of
any drawing under any Letter of Credit by 10:00 a.m.(Local Time) on the Honor
Date, the Issuing Lender will promptly notify the Agent and the Agent will
promptly notify each Revolving Lender thereof, and such Borrower shall be deemed
to have requested that Revolving Loans (to be Floating Rate Loans), be made by
the Revolving Lenders to be disbursed on the Honor Date under such Letter of
Credit, subject to the amount of the unutilized portion of the Revolving
Commitments and subject to the conditions set forth in subsections 8.4(b) and
(c). Any notice given by the Issuing Lender or the Agent pursuant to this
subsection 6.3(b) may be oral if immediately confirmed in writing (including by
facsimile); provided that the lack of such an immediate confirmation shall not
affect the conclusiveness or binding effect of such notice.
(c) Each Revolving Lender shall upon any notice pursuant to
subsection 6.3(b) make available to the Agent for the account of the Issuing
Lender an amount in U.S. Dollars or the applicable Offshore Currency, as the
case may be, and in Same Day Funds equal to its Pro Rata Share of the amount of
the drawing, whereupon such Revolving Lenders shall (subject to subsection
6.3(d)) each be deemed to have made a Revolving Loan to the applicable Borrower
in that amount bearing interest at the applicable Floating Rate plus the
applicable Floating Rate Margin. If any Revolving Lender so notified fails to
make available to the Agent for the account of
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the Issuing Lender the amount of such Revolving Lender's Pro Rata Share of the
amount of the drawing by no later than 10:00 a.m.(Local Time) on the Honor Date,
then interest shall accrue on such Revolving Lender's obligation to make such
payment, from the Honor Date to the date such Revolving Lender makes such
payment, at a rate per annum equal to (i) in the case of a drawing in U.S.
Dollars, the U.S. Federal Funds Rate in effect from time to time during such
period and (ii) in the case of a drawing in an Offshore Currency, the Overnight
Rate applicable to such Offshore Currency. The Agent will promptly give notice
of the occurrence of the Honor Date, but failure of the Agent to give any such
notice on the Honor Date or in sufficient time to enable any Revolving Lender to
effect such payment on such date shall not relieve such Revolving Lender from
its obligations under this Section 6.3.
(d) With respect to any unreimbursed drawing that is not converted
into Revolving Loans to the applicable Borrower in whole or in part, because of
such Borrower's failure to satisfy the conditions set forth in subsections
8.4(b) and (c) or for any other reason, such Borrower shall be deemed to have
incurred from the Issuing Lender an L/C Borrowing in the amount of such drawing,
which L/C Borrowing shall be due and payable on demand (together with interest)
and shall bear interest at a rate per annum equal to the Floating Rate plus the
Floating Rate Margin plus 2% per annum, and each Revolving Lender's payment to
the Issuing Lender pursuant to subsection 6.3(c) shall be deemed payment in
respect of its participation in such L/C Borrowing and shall constitute an L/C
Advance from such Revolving Lender in satisfaction of its participation
obligation under this Section 6.3.
(e) Each Revolving Lender's obligation in accordance with this
Agreement to make the Revolving Loans or L/C Advances, as contemplated by this
Section 6.3, as a result of a drawing under a Letter of Credit, shall be
absolute and unconditional and without recourse to the Issuing Lender and shall
not be affected by any circumstance, including (i) any set-off, counterclaim,
recoupment, defense or other right which such Revolving Lender may have against
the Issuing Lender, any Loan Party or any other Person for any reason
whatsoever; (ii) the occurrence or continuance of an Event of Default, an
Unmatured Event of Default or a Material Adverse Effect; or (iii) any other
circumstance, happening or event whatsoever, whether or not similar to any of
the foregoing; provided that each Revolving Lender's obligation to make
Revolving Loans under this Section 6.3 is subject to the conditions set forth in
Section 8.4.
6.4 Repayment of Participations.
(a) Upon (and only upon) receipt by the Agent for the account of the
Issuing Lender of Same Day Funds from a Borrower (i) in reimbursement of any
payment made by the Issuing Lender under
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the Letter of Credit with respect to which any Revolving Lender has paid the
Agent for the account of the Issuing Lender for such Revolving Lender's
participation in the Letter of Credit pursuant to Section 6.3 or (ii) in payment
of interest thereon, the Agent will pay to each Revolving Lender, in the same
funds as those received by the Agent for the account of the Issuing Lender, the
amount of such Revolving Lender's Pro Rata Share of such funds, and the Issuing
Lender shall receive the amount of the Pro Rata Share of such funds of any
Revolving Lender that did not so pay the Agent for the account of the Issuing
Lender.
(b) If the Agent or the Issuing Lender is required at any time to
return to any Borrower, or to a trustee, receiver, liquidator or custodian, or
any official in any Insolvency Proceeding, any portion of any payment made by
such Borrower to the Agent for the account of the Issuing Lender pursuant to
subsection 6.4(a) in reimbursement of a payment made under any Letter of Credit
or interest or fee thereon, each Revolving Lender shall, on demand of the Agent,
forthwith return to the Agent or the Issuing Lender the amount of its Pro Rata
Share of any amount so returned by the Agent or the Issuing Lender plus interest
thereon from the date such demand is made to the date such amount is returned by
such Revolving Lender to the Agent or the Issuing Lender, at a rate per annum
equal to the U.S. Federal Funds Rate in effect from time to time.
6.5 Role of the Issuing Lender.
(a) Each Lender and the Borrowers agree that, in paying any drawing
under a Letter of Credit, the Issuing Lender shall not (except to the extent of
its own gross negligence or willful misconduct) have any responsibility to
obtain any document (other than any sight draft and certificates or other
documents expressly required by the Letter of Credit) or to ascertain or inquire
as to the validity or accuracy of any such document or the authority of the
Person executing or delivering any such document.
(b) No Agent-Related Person nor any of the respective
correspondents, participants or assignees of the Issuing Lender shall be liable
to any Lender for: (i) any action taken or omitted in connection herewith at the
request or with the approval of the Lenders (including the Required Lenders and
the Required Revolving Lenders, as applicable); (ii) any action taken or omitted
in the absence of gross negligence or willful misconduct; or (iii) the due
execution, effectiveness, validity or enforceability of any L/C-Related
Document.
(c) Subject to Section 6.6, each Borrower hereby assumes all risks
of the acts or omissions of any beneficiary or transferee with respect to its
use of any Letter of Credit; provided that this assumption is not intended to,
and shall not, preclude such
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Borrower's pursuing such rights and remedies as it may have against the
beneficiary or transferee at law or under any other agreement. Subject to
Section 6.6, no Agent-Related Person, nor any of the respective correspondents,
participants or assignees of the Issuing Lender, shall be liable or responsible
for any of the matters described in clauses (i) through (vi) of Section 6.6.
Subject to Section 6.6, in furtherance and not in limitation of the foregoing:
(i) the Issuing Lender may accept documents that appear on their face to be in
order, without responsibility for further investigation, regardless of any
notice or information to the contrary; and (ii) the Issuing Lender shall not be
responsible for the validity or sufficiency of any instrument transferring or
assigning or purporting to transfer or assign a Letter of Credit or the rights
or benefits thereunder or proceeds thereof, in whole or in part, which may prove
to be invalid or ineffective for any reason.
6.6 Obligations Absolute. The obligations of each Borrower under this
Agreement and any L/C-Related Document to reimburse the Issuing Lender for a
drawing under a related Letter of Credit, and to repay any L/C Borrowing of such
Borrower and any drawing under a related Letter of Credit converted into Loans,
shall be unconditional and irrevocable, and shall be paid strictly in accordance
with the terms of this Agreement and each such other L/C-Related Document under
all circumstances, including any of the following:
(i) any lack of validity or enforceability of this Agreement
or any L/C-Related Document;
(ii) the existence of any claim, set-off, defense or other
right that such Borrower may have at any time against any beneficiary or
any transferee of any Letter of Credit (or any Person for whom any such
beneficiary or any such transferee may be acting), the Issuing Lender or
any other Person, whether in connection with this Agreement, the
transactions contemplated hereby or by the L/C-Related Documents or any
unrelated transaction;
(iii) any draft, demand, certificate or other document
presented under any Letter of Credit proving to be forged, fraudulent,
invalid or insufficient in any respect or any statement therein being
untrue or inaccurate in any respect; or any loss or delay in the
transmission or otherwise of any document required in order to make a
drawing under any Letter of Credit;
(iv) any payment by the Issuing Lender under any Letter of
Credit against presentation of a draft or certificate that does not
strictly comply with the terms of any Letter of Credit; or any payment
made by the Issuing
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Lender under any Letter of Credit to any Person purporting to be a trustee
in bankruptcy, debtor-in-possession, assignee for the benefit of
creditors, liquidator, receiver or other representative of or successor to
any beneficiary or any transferee of any Letter of Credit, including any
arising in connection with any Insolvency Proceeding;
(v) any exchange, release or non-perfection of any collateral,
or any release or amendment or waiver of or consent to departure from any
other guarantee, for all or any of the obligations of any Loan Party in
respect of any Letter of Credit; or
(vi) any other circumstance or happening whatsoever, whether
or not similar to any of the foregoing, including any other circumstance
that might otherwise constitute a defense available to, or a discharge of,
any Loan Party or a guarantor;
provided, however, that after paying in full its reimbursement obligation
hereunder, nothing herein shall adversely affect the right of such Borrower to
commence any proceeding against the Issuing Lender for any wrongful disbursement
made by the Issuing Lender under a Letter of Credit as a result of acts or
omissions constituting gross negligence or willful misconduct on the part of the
Issuing Lender.
6.7 Cash Collateral Pledge. If any Letter of Credit remains outstanding
and partially or wholly undrawn as of the Revolving Commitment Termination Date,
then the applicable Borrower shall immediately Cash Collateralize the L/C
Obligations in an amount equal to the maximum amount then available to be drawn
under such Letter of Credit.
6.8 Letter of Credit Fees.
(a) Each Borrower shall pay to the Agent for the account of the
Revolving Lenders a letter of credit fee with respect to the Letters of Credit
for the account of such Borrower at a rate per annum equal to the L/C Fee Rate
(as in effect from time to time) on the average daily maximum Dollar Equivalent
amount available to be drawn of such outstanding Letters of Credit, computed on
a quarterly basis in arrears on the last Business Day of each calendar quarter
and on the Revolving Commitment Termination Date (or such later date on which
all Letters of Credit have been terminated) based upon Letters of Credit
outstanding for the applicable period as calculated by the Agent.
(b) Each Borrower shall pay to the Agent for the account of the
Issuing Lender a letter of credit fronting fee for each Letter of Credit Issued
by the Issuing Lender for the account of
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such Borrower at the rate per annum set forth in the Fee Letter of the average
daily maximum amount available to be drawn of the outstanding Letters of Credit,
computed on the last Business Day of each calendar quarter and on the Revolving
Commitment Termination Date (or such later date on which all Letters of Credit
have been terminated) based upon the Letters of Credit outstanding for the
applicable period as calculated by the Agent.
(c) The letter of credit fees payable under subsection 6.8(a) and
the fronting fees payable under subsection 6.8(b) shall be due and payable
quarterly in arrears on the last Business Day of each calendar quarter during
which Letters of Credit are outstanding, commencing on the first such quarterly
date to occur after the Closing Date, through the Revolving Commitment
Termination Date (or such later date upon which the outstanding Letters of
Credit shall expire), with the final payment to be made on the Revolving
Commitment Termination Date (or such later expiration date).
(d) Each Borrower shall pay to the Issuing Lender from time to time
on demand the normal issuance, presentation, amendment and other processing
fees, and other standard costs and charges, of the Issuing Lender relating to
letters of credit as from time to time in effect.
6.9 Uniform Customs and Practice. The Uniform Customs and Practice for
Documentary Credits as published by the International Chamber of Commerce most
recently at the time of issuance of any Letter of Credit shall (unless otherwise
expressly provided in such Letter of Credit) apply to such Letter of Credit.
6.10 Letters of Credit for the Account of Subsidiaries. Each Borrower and
the applicable Subsidiary shall be jointly and severally liable for any Letter
of Credit which is issued jointly for the account of such Borrower and any
Subsidiary.
ARTICLE VII
TAXES, YIELD PROTECTION AND ILLEGALITY
7.1 Taxes.
(a) Any and all payments by any Borrower to any Lender or the Agent
under this Agreement and any other Loan Document shall be made free and clear
of, and without deduction or withholding for, any Taxes. In addition, the
applicable Borrower shall pay all Other Taxes.
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(b) The applicable Borrower agrees to indemnify and hold harmless
each Lender and the Agent for the full amount of Taxes or Other Taxes (including
any Taxes or Other Taxes imposed by any jurisdiction on amounts payable under
this Section) paid by such Lender or the Agent as a result of the transactions
contemplated by this Agreement and any liability (including penalties, interest,
additions to tax and expenses) arising therefrom or with respect thereto,
whether or not such Taxes or Other Taxes were correctly or legally asserted;
provided that if such Lender or the Agent determines in its reasonable
discretion that it has received a refund or credit of such Taxes or such Other
Taxes (or of any liability, including penalties, interest, additions to tax and
expenses, arising therefrom or with respect thereto), then such Lender or the
Agent shall promptly repay the applicable Borrower to the extent of such refund
or credit; provided, further, that if, due to any adjustment of such Taxes or
Other Taxes (or of any liability, including penalties, interest, additions to
tax and expenses, arising therefrom or with respect thereto) such Lender or the
Agent loses the benefit of all or any portion of such refund or credit, the
applicable Borrower will indemnify and hold harmless such Lender or the Agent in
accordance with this subsection. Nothing shall require the Agent or any Lender
to utilize such credits ahead of other credits that may be available to the
Agent or such Lender from other sources. Moreover, nothing shall require the
Agent or any Lender to make their books and records available for inspection by
any Borrower. Payment under this indemnification shall be made within 30 days
after the date such Lender or the Agent makes written demand therefor.
(c) If any Borrower shall be required by law to deduct or withhold
any Taxes or Other Taxes from or in respect of any sum payable hereunder to any
Lender or the Agent, then:
(i) the sum payable shall be increased as necessary so that
after making all required deductions and withholdings (including
deductions and withholdings applicable to additional sums payable under
this Section) such Lender or the Agent, as the case may be, receives an
amount equal to the sum it would have received had no such deductions or
withholdings been made;
(ii) such Borrower shall make such deductions and
withholdings; and
(iii) such Borrower shall pay the full amount deducted or
withheld to the relevant taxing authority or other authority in accordance
with applicable law.
(d) Within 30 days after the date of any payment by a Borrower of
Taxes or Other Taxes, such Borrower shall furnish the Agent the original or a
certified copy of a receipt evidencing
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payment thereof, or other evidence of payment satisfactory to the Agent.
(e) If any Borrower is required to pay additional amounts to any
Lender or the Agent pursuant to subsection (c) of this Section, then such Lender
shall use reasonable efforts (consistent with legal and regulatory restrictions)
to change the jurisdiction of its Lending Office or take other appropriate
action so as to eliminate any such additional payment by such Borrower which may
thereafter accrue, if such change or other action in the judgment of such Lender
is not otherwise disadvantageous to such Lender.
(f) (i) Each Lender (other than the Australian Lender and the
Canadian Lender) which is a foreign person (i.e., a person other than a United
States person for United States Federal income tax purposes) agrees that:
(A) it shall, no later than the Closing Date (or, in the case
of a Lender which becomes a party hereto after the initial Closing Date,
the date upon which such Lender becomes a party hereto) deliver to the
Agent and to DASI through the Agent (1) two accurate and complete signed
originals of Internal Revenue Service Form 4224 or any successor thereto
including Form W-8 ("Form 4224"), or two accurate and complete signed
originals of Internal Revenue Service Form 1001 or any successor thereto
including Form W-8 ("Form 1001"), as appropriate, in each case indicating
that such Lender is on the date of delivery thereof entitled to receive
payments of principal, interest and fees under this Agreement free from
withholding of United States Federal income tax; or (2) if such Lender is
not a "bank" within the meaning of Section 881(c)(3)(A) of the Code and
cannot deliver either Internal Revenue Service Form 1001 or 4224, (x) a
certificate substantially in the form of Exhibit I and (y) two properly
completed and signed copies of Internal Revenue Service Form W-8 or any
successor thereto ("Form W-8") certifying that such Lender is entitled to
an exemption from United States withholding tax with respect to payments
of interest to be made under this Agreement and any Note;
(B) if at any time such Lender makes any changes necessitating
a new Form 4224, Form 1001 or Form W-8 it shall with reasonable promptness
deliver to the Agent and to DASI through the Agent in replacement for, or
in addition to, the forms previously delivered by it hereunder, two
accurate and complete signed originals of Form 4224, Form 1001 or Form W-8
as appropriate, in each case indicating that such Lender is on the date of
delivery thereof entitled to receive payments of principal, interest and
fees under this Agreement free from
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withholding of United States Federal income tax or is entitled to an
exemption from United States withholding tax;
(C) it shall, before or promptly after the occurrence of any
event (including the passing of time (and in any event (x) in the case of
a Form 4224, before the payment of any interest in the each succeeding
taxable year of such Lender after the initial Closing Date during which
interest may be paid under this Agreement, (y) in the case of a Form 1001,
before the payment of any interest in each third succeeding calendar year
after the initial Closing Date during which interest may be paid under
this Agreement, and (z) in the case of a Form W-8, before the payment of
interest after the last day of the third calendar year after the Form W-8
is signed) but excluding any event mentioned in clause (B) above)
requiring a change in or renewal of the most recent Form 4224, Form 1001
or Form W-8 previously delivered by such Lender, deliver to the Agent and
to DASI through the Agent two accurate and complete original signed copies
of Form 4224, Form 1001 or Form W-8 in replacement for the forms
previously delivered by such Lender; and
(D) it shall, promptly upon DASI's or the Agent's reasonable
request to that effect, deliver to DASI or the Agent (as the case may be)
such other forms or similar documentation as may be required from time to
time by any applicable law, treaty, rule or regulation in order to
establish such Lender's tax status for withholding purposes, including
Form W-8.
(ii) The Australian Lender represents and warrants to the Dura
Australian Borrower that, as of the initial Closing Date, the Australian Lender
is entitled to receive payments hereunder from the Dura Australian Borrower
without deduction or withholding for or on account of any Taxes which are levied
or imposed by a Governmental Authority of or within the Commonwealth of
Australia.
(iii) The Canadian Lender (A) certifies that it is not a
non-resident of Canada for the purposes of Part XIII of the Income Tax Act
(Canada) and that it is the sole beneficial owner of payments of principal of
and interest on its Canadian Loans under this Agreement; and (B) undertakes to
advise the Canadian Borrowers and the Agent, of any changes in respect of clause
(A) (provided that the Canadian Lender shall not be required to notify the
Canadian Borrowers or the Agent of any change resulting solely from delivery to
the Canadian Lender of a Canadian Participation Funding Notice). In addition,
the Canadian Lender shall, promptly upon a Canadian Borrower's or the Agent's
reasonable request to that effect, deliver to such Canadian Borrower or the
Agent (as the case may be) such other instruments in writing, forms or similar
documentation as may be required from time to time by any
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applicable law, treaty, rule or regulation or the official interpretation of law
any rule, regulation or treaty by any Governmental Authority charged with the
interpretation or administration thereof (whether or not having the force of
law) in order to establish the Canadian Lender's tax status for withholding
purposes. If the Canadian Lender receives a request from Revenue Canada Customs,
Excise and Taxation or another taxing authority to provide additional
information concerning the withholding tax status of the Canadian Lender, the
Canadian Lender shall use reasonable efforts to obtain and deliver such
information to such taxing authority, the Agent and the Canadian Borrowers.
(iv) Notwithstanding the foregoing provisions of this subsection (f)
or any other provision of this Section 7.1, no Lender shall be required to
deliver any form pursuant to this Section 7.1 if such Lender informs the Agent
and DASI that it is not legally permitted to deliver such form as a result of a
change in any Requirement of Law after the date of this Agreement.
(g) (i) The Borrowers will not be required to pay any
additional amount in respect of United States Federal tax pursuant to this
Section 7.1 to any Lender or to the Agent with respect to any Lender:
(A) if the obligation to pay such additional amount would not
have arisen but for a failure by such Lender to comply with its
obligations under subsection 7.1(f)(i), Section 13.10 or Section 14.8;
(B) if such Lender shall have delivered to DASI a Form 4224 in
respect of its applicable Lending Office pursuant to subsection 7.1(f)(i),
and such Lender shall not at any time be entitled to exemption from
deduction or withholding of United States Federal income tax in respect of
payments by the Borrowers hereunder for the account of such Lending Office
for any reason other than a change in United States law or regulations or
in the official interpretation of such law or regulations by any
Governmental Authority charged with the interpretation or administration
thereof (whether or not having the force of law) after the date of
delivery of such Form 4224; or
(C) if such Lender shall have delivered to DASI a Form 1001 in
respect of its applicable Lending Office pursuant to subsection 7.1(f)(i),
and such Lender shall not at any time be entitled to exemption from
deduction or withholding of United States Federal income tax in respect of
payments by the Borrowers hereunder for the account of such Lending Office
for any reason other than a change in United States law or regulations or
any
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applicable tax treaty or regulations or in the official interpretation of
any such law, treaty or regulations by any Governmental Authority charged
with the interpretation or administration thereof (whether or not having
the force of law) after the date of delivery of such Form 1001.
(ii) The Canadian Borrowers will not be required to pay any
additional amount in respect of Canadian federal income tax pursuant to
this Section 7.1 to the Canadian Lender:
(A) if the obligation to pay such additional amount would not
have arisen but for a failure by such Lender to comply with its
obligations under subsection 7.1(f)(iii), Section 13.10 or Section 14.8;
or
(B) if such Lender shall have delivered an instrument in
writing pursuant to subsection 7.1(f)(iii), and such Lender shall not at
any time be entitled to exception from deduction or withholding of
Canadian federal income tax in respect of payments by the Canadian
Borrowers hereunder for the account of its applicable Lending Office for
any reason other than a change in the laws of Canada, its provinces or any
political subdivision thereof or any regulations promulgated thereunder or
any applicable tax treaty or regulations or in the official interpretation
of such laws, treaty or regulations by any Governmental Authority charged
with the interpretation or administration thereof (whether or not having
the force of law) after the date of the delivery of said instrument.
(h) If, at any time, DASI requests any Lender to deliver any
forms or other documentation pursuant to subsection 7.1(f)(i)(D), then DASI
shall, on demand of such Lender through the Agent, reimburse such Lender for any
costs and expenses (including Attorney Costs) reasonably incurred by such Lender
in the preparation or delivery of such forms or other documentation. If, at any
time, any Canadian Borrower requests the Canadian Lender to deliver any forms or
other documentation pursuant to subsection 7.1(f)(iii), then such Canadian
Borrower shall, on demand of the Canadian Lender, reimburse such Lender for any
costs and expenses (including Attorney Costs) reasonably incurred by the
Canadian Lender in the preparation or delivery of such instruments, forms or
other documentation.
(i) Each Lender having a Tranche A Term Commitment or a
Revolving Commitment or holding Tranche A Term Loans or Revolving Loans to a
U.K. Borrower represents to the Borrowers, the Agent and the Swing Line Lender
that, in the case of a Lender which
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is a Lender on the initial Closing Date and, in the case of a Lender which
becomes a Lender after the initial Closing Date, on the date it becomes a Lender
it is:
(A) either:
(1) not resident in the United Kingdom for United Kingdom tax
purposes; or
(2) a "bank" as defined in section 840A of the Income and
Corporation Taxes Act 1988 and resident in the United Kingdom; and
(B) beneficially entitled to the principal and interest payable by
the Borrowers to it under this Agreement,
and shall forthwith notify the Borrowers, the Agent and the Swing Line Lender if
either representation ceases to be correct.
Each Lender that is not funding its Loans to the U.K. Borrowers out of a Lending
Office in the United Kingdom (or another jurisdiction having an exemption from
United Kingdom income tax by treaty) shall submit a duly completed Form FD13
double tax treaty form to the U.S. Internal Revenue Service (or the comparable
form for its jurisdiction to its jurisdiction's tax authorities) no later than
June 1, 1999 seeking exemption from United Kingdom income tax on interest
payable under the Loan Documents by the U.K. Borrowers.
(j) If the Australian Lender is obliged to make a deduction in
respect of any Taxes or Other Taxes from any payment to any other Lender in
respect of such other Lender's participation in any Australian Loan, the Dura
Australian Borrower shall pay the Australian Lender on the due date of the
payment to the relevant Lender any additional amount necessary (as determined by
the Australian Lender) to ensure that the relevant Lender receives when due a
net amount (after payment of any Taxes or Other Taxes in respect of such
additional amounts) in the relevant currency equal to the full amount which it
would have been entitled to receive from the Australian Lender had a deduction
not been made, and the Dura Australian Borrower shall indemnify the Australian
Lender and each other Lender on demand against all Taxes or Other Taxes.
(k) If the Canadian Lender is obliged to make a deduction in respect
of any Taxes or Other Taxes from any payment to any other Lender in respect of
such other Lender's participation in any Canadian Loan, the applicable Borrower
shall pay the Canadian Lender on the due date of the payment to the relevant
Lender any additional amount necessary (as determined by the Canadian Lender) to
ensure that the relevant Lender receives when due a net amount (after payment of
any Taxes or Other Taxes in respect of such additional amounts) in the relevant
currency equal
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to the full amount which it would have been entitled to receive from the
Canadian Lender had a deduction not been made, and such Canadian Borrower shall
indemnify the Canadian Lender and each other Lender on demand against all Taxes
or Other Taxes.
7.2 Illegality.
(a) If any Lender determines that the introduction of any
Requirement of Law, or any change in any Requirement of Law, or in the
interpretation or administration of any Requirement of Law, has made it
unlawful, or that any central bank or other Governmental Authority has asserted
that it is unlawful, for such Lender or its applicable Lending Office to make
Offshore Rate Loans in any Applicable Currency, or in the case of the Australian
Lender, Australian Bank Bill Rate Loans, or in the case of the Canadian Lender,
Offshore Canadian Loans or Canadian U.S. Dollar Offshore Rate Loans, then, on
notice thereof by the Lender to the applicable Borrower through the Agent, any
obligation of such Lender to make Offshore Rate Loans in such Applicable
Currency, Australian Bank Bill Rate Loans, Offshore Canadian Loans or Canadian
U.S. Dollar Offshore Rate Loans, as the case may be, shall be suspended until
such Lender notifies the Agent and the applicable Borrower that the
circumstances giving rise to such determination no longer exist.
(b) If a Lender determines that it is unlawful to maintain any
Offshore Rate Loan in any Applicable Currency, or in the case of the Australian
Lender, any Australian Bank Bill Rate Loan, or in the case of the Canadian
Lender, Offshore Canadian Loans or Canadian U.S. Dollar Offshore Rate Loans, the
applicable Borrower shall, upon its receipt of notice of such fact and demand
from such Lender (with a copy to the Agent), prepay in full the Offshore Rate
Loans of such Lender then outstanding in such Applicable Currency, the
Australian Bank Bill Rate Loans, Offshore Canadian Loans or Canadian U.S. Dollar
Offshore Rate Loans of such Lender, as applicable, together with interest
accrued thereon and amounts required under Section 7.4, either on the last day
of the Interest Period therefor, if such Lender may lawfully continue to
maintain such Offshore Rate Loan, such Australian Bank Bill Rate Loan, such
Offshore Canadian Loan or such Canadian U.S. Dollar Offshore Rate Loan to such
day, or immediately, if such Lender may not lawfully continue to maintain such
Offshore Rate Loan, Australian Bank Bill Rate Loan, Offshore Canadian Loan or
Canadian U.S. Dollar Offshore Rate Loan. If any Borrower is required to so
prepay any Offshore Rate Loan, Australian Bank Bill Rate Loan, Offshore Canadian
Loan or Canadian U.S. Dollar Offshore Rate Loan, then concurrently with such
prepayment, such Borrower shall borrow from the affected Lender, in the Dollar
Equivalent amount of such prepayment, a Floating Rate Loan.
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(c) Before giving any notice to the Agent under this Section, the
affected Lender shall designate a different Lending Office with respect to its
Offshore Rate Loans, Australian Bank Bill Rate Loans, Offshore Canadian Loans or
Canadian U.S. Dollar Offshore Rate Loans or take other appropriate action if
such designation or other action will avoid the need for giving such notice and
will not, in the judgment of such Lender, be illegal or otherwise
disadvantageous to such Lender.
7.3 Increased Costs and Reduction of Return.
(a) If any Lender determines that, due to either (i) the
introduction of or any change in or in the interpretation of any law or
regulation or (ii) the compliance by such Lender with any guideline or request
from any central bank or other Governmental Authority (whether or not having the
force of law), there shall be any increase in the cost to such Lender of
agreeing to make or making, funding or maintaining any Offshore Rate Loan,
Australian Bank Bill Rate Loan, Offshore Canadian Loan or Canadian U.S. Dollar
Offshore Rate Loan or participating in Letters of Credit, or, in the case of the
Issuing Lender, any increase in the cost to the Issuing Lender of agreeing to
issue, issuing or maintaining any Letter of Credit or of agreeing to make or
making, funding or maintaining any unpaid drawing under any Letter of Credit, in
each case excluding any increase in taxes on the overall net income (including
franchise taxes based on net income) of such Lender, then the applicable
Borrower shall be liable for, and shall from time to time, upon demand (with a
copy of such demand to be sent to the Agent), pay to the Agent for the account
of such Lender, additional amounts as are sufficient to compensate such Lender
for such increased costs.
(b) If any Lender shall have determined that (i) the introduction of
any Capital Adequacy Regulation, (ii) any change in any Capital Adequacy
Regulation, (iii) any change in the interpretation or administration of any
Capital Adequacy Regulation by any central bank or other Governmental Authority
charged with the interpretation or administration thereof, or (iv) compliance by
such Lender (or its Lending Office) or any corporation controlling such Lender
with any Capital Adequacy Regulation, affects or would affect the amount of
capital required or expected to be maintained by such Lender or any corporation
controlling such Lender and (taking into consideration such Lender's or such
corporation's policies with respect to capital adequacy) determines that the
amount of such capital is increased as a consequence of its Commitment, loans,
credits or obligations under this Agreement, then, upon demand of such Lender to
Dura through the Agent, the applicable Borrower shall pay to such Lender, from
time to time as specified by such Lender, additional amounts sufficient to
compensate such Lender for such increase.
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7.4 Funding Losses. The applicable Borrower shall reimburse each Lender
and hold each Lender harmless from any loss or expense which such Lender may
sustain or incur as a consequence of:
(a) the failure of such Borrower to make on a timely basis any
payment of principal of any Offshore Rate Loan, Australian Bank Bill Rate Loan,
Offshore Canadian Loan or Canadian U.S. Dollar Offshore Rate Loan;
(b) the failure of such Borrower to borrow, continue or convert an
Offshore Rate Loan, Australian Bank Bill Rate Loan, Offshore Canadian Loan or
Canadian U.S. Dollar Offshore Rate Loan after such Borrower has given (or is
deemed to have given) a Notice of Group Borrowing, Notice of Australian
Borrowing, Notice of Canadian Borrowing or a Notice of Conversion/Continuation;
(c) the failure of such Borrower to make any prepayment of any Loan
in accordance with any notice delivered under Section 2.8, 4.4 or 5.4;
(d) the prepayment (including pursuant to Section 2.6 or 2.8) or
other payment (including after acceleration thereof) of the principal of any
Offshore Rate Loan, Australian Bank Bill Rate Loan, Offshore Canadian Loan or
Canadian U.S. Dollar Offshore Rate Loan on a day that is not the last day of the
relevant Interest Period; or
(e) the automatic conversion under Section 2.4, 4.3 or 5.3 of any
Offshore Rate Loan, an Australian Bank Bill Rate Loan, Offshore Canadian Loan or
Canadian U.S. Dollar Offshore Rate Loan to a Floating Rate Loan on a day that is
not the last day of the relevant Interest Period;
including any such loss or expense arising from the liquidation or reemployment
of funds obtained by it to maintain the applicable Loans or from fees payable to
terminate the deposits from which such funds were obtained. For purposes of
calculating amounts payable by a Borrower to any Lender under this Section and
under subsection 7.3(a), (i) each Offshore Rate Loan made by a Lender (and each
related reserve, special deposit or similar requirement) shall be conclusively
deemed to have been funded at the Offshore Rate used in determining the interest
rate for such Offshore Rate Loan by a matching deposit or other borrowing in the
interbank eurodollar market for a comparable amount and for a comparable period
and in the same Applicable Currency, whether or not such Offshore Rate Loan is
in fact so funded, (ii) each Australian Bank Bill Rate Loan made by the
Australian Lender (and each related reserve, special deposit or similar
requirement) shall be conclusively deemed to have been funded at the Australian
Bank Bill Rate applicable to such Australian Bank Bill Rate Loan by the purchase
by the Australian Lender of a bill of exchange in a
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comparable amount and for a comparable period, whether or not such Australian
Bank Bill Rate Loan is in fact so funded, (iii) each Offshore Canadian Loan made
by the Canadian Lender (and each related reserve, special deposit or similar
requirement) shall be conclusively deemed to have been funded at the Canadian
Offshore Rate applicable to such Offshore Canadian Loan by a matching deposit or
other borrowing in the interbank offshore market for Canadian dollars for a
comparable amount and for a comparable period, whether or not such Offshore
Canadian Loan is in fact so funded, and (iv) each Canadian U.S. Dollar Offshore
Rate Loan made by the Canadian Lender (and each related reserve, special deposit
or similar requirement) shall be conclusively deemed to have been funded at the
Canadian U.S. Dollar Offshore Rate applicable to such Canadian U.S. Dollar
Offshore Rate Loan by a matching deposit or other borrowing in the interbank
offshore market for U.S. dollars for a comparable amount and for a comparable
period, whether or not such Canadian U.S. Dollar Offshore Rate Loan is in fact
so funded.
7.5 Inability to Determine Rates.
(a) If the Agent or the Required Lenders determine that for any
reason adequate and reasonable means do not exist for determining the Offshore
Rate for any requested Interest Period with respect to a proposed Offshore Rate
Loan under the applicable Facility, or that the Offshore Rate to be applicable
for any requested Interest Period with respect to a proposed Offshore Rate Loan
does not adequately and fairly reflect the cost to the Lenders of funding such
Loan, the Agent will promptly so notify DASI and each Lender. Thereafter, the
obligation of the Lenders to make or maintain Offshore Rate Loans in the
Applicable Currency shall be suspended until the Agent upon the instruction of
the Required Lenders revoke such notice in writing. Upon receipt of such notice,
any Borrower may revoke any Notice of Group Borrowing or Notice of
Conversion/Continuation then submitted by it. If the applicable Borrower does
not revoke any such Notice, the Lenders shall make, convert or continue the
applicable Loans, as proposed by such Borrower, in the amount specified in the
applicable notice submitted by such Borrower, but such Loans shall be made,
converted or continued as Floating Rate Loans instead of Offshore Rate Loans. In
the case of any Offshore Currency Offshore Rate Loans, the Borrowing or
continuation shall be in an aggregate amount equal to the Dollar Equivalent
amount of the originally requested Borrowing or continuation in the Offshore
Currency, and to that end any outstanding Offshore Currency Offshore Rate Loans
which are the subject of any continuation shall be redenominated and converted
into Floating Rate Loans in U.S. Dollars with effect from the last day of the
Interest Period with respect to such Offshore Currency Offshore Rate Loans.
(b) If the Australian Lender shall have determined that for any
reason adequate and reasonable means do not exist for
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ascertaining the Australian Bank Bill Rate for any requested Interest Period
with respect to a proposed Australian Bank Bill Rate Loan, or the Australian
Lender shall have determined that the Australian Bank Bill Rate to be applicable
for any requested Interest Period with respect to a proposed Australian Bank
Bill Rate Loan does not adequately and fairly reflect the cost to the Australian
Lender of funding such Loan, the Australian Lender will forthwith give notice of
such determination to the Dura Australian Borrower and the Agent. Thereafter,
the obligation of the Australian Lender to make or maintain Australian Bank Bill
Rate Loans for the account of the Dura Australian Borrower hereunder shall be
suspended until the Australian Lender revokes such notice in writing. Upon
receipt of such notice, the Dura Australian Borrower may revoke any Notice of
Australian Borrowing or Notice of Conversion/Continuation then submitted by it.
If the Dura Australian Borrower does not revoke any such notice, the Australian
Lender shall make, convert or continue the Loans, as proposed by the Dura
Australian Borrower, in the amount specified in the applicable notice submitted
by the Dura Australian Borrower, but such Loans shall be made, converted or
continued as Australian Floating Rate Loans.
(c) If the Canadian Lender shall have determined that for any reason
adequate and reasonable means do not exist for ascertaining the Canadian
Offshore Rate for any requested Interest Period with respect to a proposed
Offshore Canadian Loan, or the Canadian Lender shall have determined that the
Canadian Offshore Rate to be applicable for any requested Interest Period with
respect to a proposed Offshore Canadian Loan does not adequately and fairly
reflect the cost to the Canadian Lender of funding such Loan, the Canadian
Lender will forthwith give notice of such determination to the Canadian
Borrowers and the Agent. Thereafter, the obligation of the Canadian Lender to
make or maintain Offshore Canadian Loans, for the account of the Canadian
Borrowers hereunder shall be suspended until the Canadian Lender revokes such
notice in writing. Upon receipt of such notice, any Canadian Borrower may revoke
any Notice of Canadian Borrowing or Notice of Conversion/Continuation then
submitted by it. If any Canadian Borrower does not revoke any such notice, the
Canadian Lender shall make, convert or continue the Loans, as proposed by such
Canadian Borrower, in the amount specified in the applicable notice submitted by
such Canadian Borrower, but such Loans shall be made, converted or continued as
Canadian Prime Rate Loans.
If the Canadian Lender shall have determined that for any reason
adequate and reasonable means do not exist for ascertaining the Canadian U.S.
Dollar Offshore Rate for any requested Interest Period with respect to a
proposed Canadian U.S. Dollar Offshore Rate Loan, or the Canadian Lender shall
have determined that the Canadian U.S. Dollar Offshore Rate to be applicable for
any requested Interest Period with respect to a proposed Canadian U.S.
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Dollar Offshore Rate Loan does not adequately and fairly reflect the cost to the
Canadian Lender of funding such Loan, the Canadian Lender will forthwith give
notice of such determination to the Canadian Borrowers and the Agent.
Thereafter, the obligation of the Canadian Lender to make or maintain Canadian
U.S. Dollar Offshore Rate Loans, for the account of the Canadian Borrowers
hereunder shall be suspended until the Canadian Lender revokes such notice in
writing. Upon receipt of such notice, any Canadian Borrower may revoke any
Notice of Canadian Borrowing or Notice of Conversion/Continuation then submitted
by it. If any Canadian Borrower does not revoke any such notice, the Canadian
Lender shall make, convert or continue the Loans, as proposed by such Canadian
Borrower, in the amount specified in the applicable notice submitted by such
Canadian Borrower, but such Loans shall be made, converted or continued as
Canadian U.S. Dollar Base Rate Loans.
7.6 Reserves on Offshore Rate Loans.
(a) The applicable Borrower shall pay to each Lender, as long as
such Lender shall be required under regulations of the FRB to maintain reserves
with respect to liabilities or assets consisting of or including Eurocurrency
funds or deposits (currently known as "Eurocurrency liabilities") and, in
respect of any Offshore Canadian Loans, Canadian U.S. Dollar Offshore Rate
Loans, Australian Loans or Offshore Currency Loans, under any applicable
regulations of the Bank of Canada or other relevant Governmental Authority in
Canada (in the case of Offshore Canadian Loans or Canadian U.S. Dollar Offshore
Rate Loans) or Australia (in the case of Australian Loans) or the country in
which the Offshore Currency of such Offshore Currency Loan circulates (in the
case of Offshore Currency Loans) or of the European Central Bank (in the case of
an Offshore Currency Loan in Euros), additional costs (excluding any costs in
which such Lender receives compensation pursuant to subsection 7.6(b)) on the
unpaid principal amount of each Offshore Canadian Loan, Canadian U.S. Dollar
Offshore Rate Loan, Australian Loan and Offshore Currency Loan equal to the
actual costs of such reserves allocated to such Loan by such Lender (as
determined by such Lender in good faith, which determination shall be
conclusive), payable on each date on which interest is payable on such Loan,
provided the applicable Borrower shall have received at least 15 days' prior
written notice (with a copy to the Agent) of the amount of such additional
interest from such Lender. If a Lender fails to give notice 15 days prior to the
relevant Interest Payment Date, such additional interest shall be payable 15
days from receipt of such notice.
(b) Concurrently with each payment of interest on any Offshore
Currency Loan, the applicable Borrower shall pay to each Lender the additional
costs referred to in Schedule 7.6 so long as such Lender shall be required to
comply with the then existing
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requirements of the Bank of England and/or the U.K. Financial Services
Authority.
7.7 Certificates of Lenders. Any Lender claiming reimbursement or
compensation under this Article VII shall deliver to the applicable Borrower
(with a copy to the Agent) a certificate (a) setting forth in reasonable detail
the circumstances giving rise to such claim and a computation of the amount
payable to such Lender hereunder in respect thereof and (b) certifying that such
Lender is making similar claims based on such circumstances to
similarly-situated borrowers from such Lender. Any such certificate shall be
conclusive and binding on such Borrower in the absence of manifest error.
7.8 Substitution of Lenders. Upon the receipt by any Borrower or the Agent
from any Lender (an "Affected Lender") of a claim for compensation under Section
7.1 or 7.3 or a notice of the type described in subsection 2.5(b), 2.5(c),
7.2(a) or 7.2(b), the applicable Borrower may: (i) request the Affected Lender
to use its best efforts to obtain a replacement bank or financial institution
reasonably satisfactory to the Borrowers to acquire and assume all or a ratable
part of all of such Affected Lender's Loans and Commitments (a "Replacement
Lender"); (ii) request one more of the other Lenders to acquire and assume all
or part of such Affected Lender's Loans and Commitments (it being within the
discretion of any such other Lenders whether or not to agree to such request);
or (iii) designate a Replacement Lender. Any such designation of a Replacement
Lender under clause (i) or (iii) shall be subject to the prior written consent
of the Agent (which consent shall not be unreasonably withheld).
7.9 Right of Lenders to Fund through Branches and Affiliates. Each Lender
may, if it so elects, fulfill its commitment as to any Loan hereunder by
designating a branch or Affiliate of such Lender to make such Loan; provided
that (a) such Lender shall remain solely responsible for the performances of its
obligations hereunder and (b) no such designation shall result in any increased
costs to the applicable Borrower.
7.10 Survival. The agreements and obligations of the Borrowers in this
Article VII shall survive the payment of all other Obligations.
ARTICLE VIII
CONDITIONS PRECEDENT
8.1 Conditions to Effective Date. This Agreement shall become effective on
the initial date by which the following
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conditions shall have been met: (i) the Effective Date shall occur on or before
August 1, 1999; (ii) the Adwest Closing Date or the Excel Closing Date shall
occur concurrently with the Effective Date, and (iii) the Agent shall have
received on or before the Effective Date all of the following duly executed, in
form and substance satisfactory to the Agent and each Lender, and (except with
respect to any Notes) in sufficient copies for the Agent and each Lender:
(a) Credit Agreement and Notes. This Agreement (and, if applicable,
any Notes) executed by each party hereto (and if applicable, thereto).
(b) Resolutions; Incumbencies.
(i) Copies of the resolutions of the board of directors (or
comparable body) of each then existing Loan Party authorizing the
execution, delivery and performance by such Loan Party of the Loan
Documents to which such Loan Party is to be a party, certified as of the
Effective Date by the Secretary or an Assistant Secretary (or other
appropriate representative) of such Loan Party; and
(ii) A certificate of the Secretary or Assistant Secretary (or other
appropriate representative) of each then existing Loan Party certifying as
of the Effective Date the names and true signatures of the officers of
such Loan Party authorized to execute, deliver and perform the Loan
Documents to which such Loan Party is to be a party.
(c) Organization Documents; Good Standing. Each of the following
documents:
(i) the articles or certificate of incorporation or association, the
memorandum and articles of association and, if applicable, the bylaws (or
other comparable constitutive documents)of each then existing Loan Party
as in effect on the Effective Date, certified by the Secretary or
Assistant Secretary (or other appropriate representative) of such then
existing Loan Party as of the Effective Date; and
(ii) in the case of the Dura German Borrower and Moblan, a recent
excerpt from the Commercial Registry in which such entity is registered;
and in the case of the Canadian Borrowers, a Certificate of Status from
the Ministry of Consumer and Commercial Relations of Ontario; and in the
case of the other then existing Loan Parties, evidence of organizational
good standing or existence, as applicable; and
(iii) certified copies of any necessary approvals of Governmental
Authorities and third parties for the
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transactions contemplated hereby (other than (A) any such approvals which
will be required, or set forth, in the Adwest Offer Documents, as
conditions to the Adwest Offer, (B) in respect of the Excel Acquisition,
and (C) other approvals the failure to obtain which could not reasonably
be expected to have a Material Adverse Effect).
(d) Guaranties. The Guaranties and Reaffirmations of Guaranties of
the then existing Loan Parties listed in Part I of Schedule 8.1(d).
(e) Collateral Documents. The Security Agreements, the Charges and
Memoranda of Deposit, the Debentures, the Pledge Agreements, the Mortgages and
Reaffirmations of Collateral Documents of the then existing Loan Parties listed
in Part I of Schedule 8.1(e) together with satisfactory evidence that the Agent
has been granted on behalf of the Lender Parties a perfected, first priority
Lien in all Collateral (subject to Permitted Liens, Section 10.14 and Section
14.22).
(f) Certificate. A certificate signed by a Responsible Officer of
DASI and Dura, dated as of the Effective Date, stating that:
(i) the representations and warranties contained in Article IX are
true and correct on and as of such date, as though made on and as of such
date;
(ii) no Event of Default or Unmatured Event of Default exists; and
(iii) no event or circumstance has occurred since December 31, 1997
that has resulted or could reasonably be expected to result in (A) a
material adverse change in, or a material adverse effect upon, the
operations, business, properties, condition (financial or otherwise) or
prospects of DASI and its Subsidiaries taken as a whole; or (B) a material
impairment of the ability of the Loan Parties to perform under any
applicable Loan Document.
(g) Legal Opinions. An opinion of Kirkland & Ellis, U.S. counsel to
then existing Loan Parties, substantially in the form of Exhibit G-1; an opinion
of Andersen Legal, Australian counsel to the then existing Loan Parties,
substantially in the form of Exhibit G-2; an opinion of Davies, Ward & Beck,
Canadian counsel to the then existing Loan Parties, substantially in the form of
Exhibit G-3; an opinion of Andersen Freihalter, German counsel to the then
existing Loan Parties, substantially in the form of Exhibit G-4; an opinion of
Nauta Dutilh, Netherlands counsel to the then existing Loan Parties,
substantially in the form of Exhibit G-5; and an opinion of Slaughter and May,
English
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counsel to the then existing Loan Parties, substantially in the form of Exhibit
G-6.
(h) Other Documents. Such other approvals, opinions, documents or
materials as the Agent or any Lender may reasonably request.
(i) Corporate Structure. A description of the pro forma corporate
capital and ownership structure of DASI, the Borrowers and their respective
Subsidiaries (after giving effect to the Adwest Acquisition and the Excel
Acquisition), which is reasonably satisfactory to the Agent in form and
substance.
8.2 Conditions to Adwest Acquisition Loans and Refinancing Credit
Extensions.
The obligations of each Lender to make any Adwest Acquisition Loan
or Refinancing Credit Extension are subject to the conditions that:
(a) the Effective Date shall have occurred or be occurring
concurrently with the making of such Adwest Acquisition Loan or Refinancing
Credit Extension;
(b) subject to the New UK Borrower's obligations under Note 2 to
Rule 13 of the U.K. City Code, no condition of the Adwest Offer shall have been
waived in whole or in part without the prior written consent of the Lenders
(such consent not to be unreasonably withheld or delayed), as confirmed to the
Lenders in writing by a Responsible Officer of the New UK Borrower;
(c) the Adwest Offer shall have been declared unconditional as to
acceptances in respect of at least 75% of all the Adwest Ordinary Shares and
shall have become or been declared unconditional in all respects;
(d) the Adwest Offer Price shall not exceed (pound)1.50 per Adwest
Ordinary Share;
(e) it shall not be unlawful for any Lender to make or fund, or to
have any commitments hereunder to make or fund, any such Adwest Acquisition
Loan;
(f) none of the events referred to in Section 12.1(f) or (g) shall
have occurred and be continuing in relation to DASI, Dura, the New UK Borrower,
Adwest any other member of the Adwest Group save, in the case of any member of
the Adwest Group, in circumstances where the New UK Borrower, in compliance with
its obligations under Note 2 to Rule 13 of the U.K. City Code, is not permitted
to withdraw the Adwest Offer;
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(g) each Lender shall have received copies of the Adwest
Announcement and the Adwest Offer Document and any amendments or supplements
thereto, in each case, certified to be true and complete by Responsible Officer
of the New UK Borrower;
(h) each Lender shall have received, in form and substance
satisfactory to it and its counsel, all of the documents listed in Schedule 8.2;
(i) the Agent shall have received evidence of payment by DASI of all
accrued and unpaid fees, costs and expenses to the extent then due and payable
on the Adwest Closing Date, together with Attorney Costs of the Agent to the
extent invoiced prior to or on the Adwest Closing Date, plus such additional
amounts of Attorney Costs as shall constitute the Agent's reasonable estimate of
Attorney Costs incurred or to be incurred by it through the closing proceedings
(provided that such estimate shall not thereafter preclude final settling of
accounts between DASI and the Agent), including any such costs, fees and
expenses arising under or referenced in Section 2.11 or 14.4; and
(j) the drawdown date for any Adwest Acquisition Loan shall fall on
or before the Adwest Acquisition Commitment Termination Date.
8.3 Conditions to Credit Extensions on Excel Closing Date. The obligation
of each Lender to make the Loans to Dura on the Excel Closing Date to fund the
Excel Acquisition is subject to the conditions that: (i) the Effective Date
shall have occurred or be occurring concurrently with the Excel Closing Date;
(ii) DASI shall have submitted evidence reasonably satisfactory to the Agent
that the Excel Acquisition has been (or concurrently with the Loans to Dura on
the Excel Closing Date will be) consummated in accordance with the Excel
Acquisition Documents and in compliance with all applicable laws, regulatory
approvals and existing contractual restrictions, with the exchange of
substantially all the ordinary shares of Excel for Class A Common Shares of DASI
and cash in an aggregate purchase price not in excess of U.S.$500,000,000
(including repayment of Excel Debt to be Repaid); (iii) there shall not exist
any order, decree, judgment, ruling or injunction which restrains the
consummation of the Excel Acquisition in the manner contemplated by the Excel
Acquisition Documents; (iv) DASI shall have submitted evidence reasonably
satisfactory to the Agent that all Excel Debt to be Repaid specified on Schedule
8.3A to be repaid on the Excel Closing Date has been (or concurrently with the
Loans to Dura on the Excel Closing Date will be) paid in full and that all Liens
securing such Excel Debt to be Repaid have been terminated;(v) the Excel Closing
Date shall occur on or before August 1, 1999; and (vi) the Agent shall have
received on or before the Excel Closing Date all of the following (to the extent
not previously provided on the Effective Date) duly executed, in form
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and substance satisfactory to the Agent and each Lender, and in sufficient
copies for the Agent and each Lender:
(a) Resolutions; Incumbencies.
(i) Copies of the resolutions of the board of directors (or
comparable body) of each Excel Loan Party authorizing the execution,
delivery and performance by such Excel Loan Party of the Loan
Documents to which such Excel Loan Party is to be a party, certified
as of the Excel Closing Date by the Secretary or an Assistant
Secretary of such Excel Loan Party; and
(ii) A certificate of the Secretary or Assistant Secretary of
each Excel Loan Party certifying as of the Excel Closing Date the
names and true signatures of the officers of such Excel Loan Party
authorized to execute, deliver and perform the Loan Documents to
which such Excel Loan Party is to be a party.
(b) Organization Documents; Good Standing. Each of the following
documents:
(i) the articles or certificate of incorporation or association and,
if applicable, the bylaws (or other comparable constitutive documents)of
each Excel Loan Party as in effect on the Excel Closing Date, certified by
the Secretary or Assistant Secretary of such Excel Loan Party as of the
Excel Closing Date; and
(ii) in the case of each Excel Loan Party, evidence of
organizational good standing or existence, as applicable.
(c) Guaranties. The Guaranties of the Excel Loan Parties listed in
Part III of Schedule 8.1(d).
(d) Collateral Documents. The Security Agreements, the Pledge
Agreements and the Mortgages of the Excel Loan Parties listed in Part III of
Schedule 8.1(e), together with satisfactory evidence that the Agent has been
granted on behalf of the Lender Parties a perfected, first priority Lien in all
Collateral (subject to Permitted Liens, Section 10.14 and Section 14.22).
(e) Excel Acquisition Documents. A certificate of a Responsible
Officer certifying as of the Excel Closing Date true and complete copies of the
Excel Acquisition Documents.
(f) Payment of Fees. Evidence of payment by DASI of all accrued and
unpaid fees, costs and expenses to the extent then due and payable on the Excel
Closing Date, together with Attorney Costs of the Agent to the extent invoiced
prior to or on the Excel
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Closing Date, plus such additional amounts of Attorney Costs as shall constitute
the Agent's reasonable estimate of Attorney Costs incurred or to be incurred by
it through the closing proceedings (provided that such estimate shall not
thereafter preclude final settling of accounts between DASI and the Agent),
including any such costs, fees and expenses arising under or referenced in
Section 2.11 or 14.4.
(g) Certificate. A certificate signed by a Responsible Officer of
DASI and Dura, dated as of the Excel Closing Date, stating that:
(i) the representations and warranties contained in Article IX are
true and correct on and as of such date, as though made on and as of such
date;
(ii) no Event of Default or Unmatured Event of Default exists or
would result from the Loans to Dura on the Excel Closing Date; and
(iii) no event or circumstance has occurred since December 31, 1997
that has resulted or could reasonably be expected to result in a Material
Adverse Effect.
(h) Legal Opinions. An opinion of Kirkland & Ellis, U.S. counsel to
Loan Parties, substantially in the form of Exhibit G-1; and an opinion of
Andersen Freihalter, German counsel to the Loan Parties, substantially in the
form of Exhibit G-4.
(i) Environmental Reports. Environmental reports with respect to
certain real property owned or leased by Excel and the Excel Subsidiaries, in
form and substance reasonably satisfactory to the Agent.
(j) Other Documents. Such other approvals, opinions, documents or
materials as the Agent or any Lender may reasonably request.
8.4 Conditions to All Non-Adwest Acquisition Credit Extensions. The
obligation of each Lender to make any Non-Adwest Acquisition Credit Extension
(including the initial Non-Adwest Acquisition Credit Extension) is subject to
the satisfaction of the following conditions precedent on the relevant Borrowing
Date or Issuance Date:
(a) Notice, Application. The Agent (and, if applicable, the
Australian Lender or the Canadian Lender) shall have received a Notice of Group
Borrowing (in the case of a Group Borrowing),a Notice of Australian Borrowing
(in the case of an Australian Borrowing), or a Notice of Canadian Borrowing (in
the case of a Canadian Borrowing) or the Agent and the Swing Line Lender shall
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have received a Request for Swing Line Loan or the Issuing Lender and the Agent
shall have received an L/C Application or L/C Amendment Application, as required
under Section 3.2 (in the case of any Issuance of a Letter of Credit).
(b) Continuation of Representations and Warranties. The
representations and warranties in Article IX shall be true and correct in all
material respects on and as of the date of such Credit Extension with the same
effect as if made on and as of such date (except to the extent such
representations and warranties expressly refer to an earlier date, in which case
they shall be true and correct as of such earlier date).
(c) No Existing Default. No Event of Default or Unmatured Event of
Default shall exist or will result from such Credit Extension.
Each Notice of Group Borrowing, Notice of Australian Borrowing, Notice of
Canadian Borrowing, L/C Application, L/C Amendment Application, and Request for
Swing Line Loan submitted by a Borrower hereunder shall constitute a
representation and warranty by such Borrower hereunder, as of the date of such
notice or request and as of the relevant Borrowing Date or Issuance Date, as
applicable, that the applicable conditions in this Section 8.4 are satisfied.
ARTICLE IX
REPRESENTATIONS AND WARRANTIES
DASI, Dura and the New UK Borrower jointly and severally represent and
warrant to the Agent and each Lender (and each other Borrower represents and
warrants to the Agent and each Lender to itself) that:
9.1 Corporate Existence and Power. Each Loan Party and each of its
Subsidiaries:
(a) is duly organized, validly existing and in good standing under
the laws of the jurisdiction of its organization;
(b) has the power and authority and all governmental licenses,
authorizations, consents and approvals (i) to own its assets and to carry on its
business as presently conducted and (ii) to execute, deliver and perform its
obligations under the Loan Documents to which it is a party;
(c) is duly qualified and is licensed and in good standing under the
laws of each jurisdiction where its ownership,
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lease or operation of property or the conduct of its business requires such
qualification or license; and
(d) is in compliance with all Requirements of Law;
except, in each case referred to in clauses (b)(i), (c) and (d), to the extent
that the failure to do so could not reasonably be expected to have a Material
Adverse Effect.
9.2 Authorization; No Contravention. The execution, delivery and
performance by each Loan Party of each Loan Document to which such Loan Party is
a party have been duly authorized by all necessary corporate action, and do not
and will not:
(a) contravene the terms of such Loan Party's Organization
Documents;
(b) conflict with or result in any breach or contravention of, or
the creation of any Lien under, any document evidencing any material Contractual
Obligation to which DASI or any Subsidiary is a party or any material order,
injunction, writ or decree of any Governmental Authority to which DASI or any
Subsidiary or any property thereof is subject; or
(c) violate any material Requirement of Law.
9.3 Governmental Authorization. No material approval, consent, exemption,
authorization or other action by, or notice to, or filing with, any Governmental
Authority is necessary or required in connection with the execution, delivery or
performance by, or enforcement against, any Loan Party of any Loan Document to
which such Loan Party is a party.
9.4 Binding Effect. Each of this Agreement and each other Loan Document to
which any Loan Party is a party constitutes the legal, valid and binding
obligation of such Loan Party, enforceable against such Loan Party in accordance
with its 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.
9.5 Litigation. Except as may exist with respect to matters specifically
disclosed in Schedule 9.5, there are no actions, suits, proceedings, claims or
disputes pending or, to the best knowledge of the Loan Parties, threatened or
contemplated, at law, in equity, in arbitration or before any Governmental
Authority, against DASI or any Subsidiary or any of their respective properties
which:
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(a) purport to affect or pertain to this Agreement or any other Loan
Document, or any of the transactions contemplated hereby or thereby; or
(b) as to which there exists a reasonable likelihood of an adverse
determination, which determination would reasonably be expected to have a
Material Adverse Effect.
No injunction, writ, temporary restraining order or other order of any
nature has been issued by any court or other Governmental Authority purporting
to enjoin or restrain the execution, delivery or performance of this Agreement
or any other Loan Document, or directing that the transactions provided for
herein or therein not be consummated as herein or therein provided.
9.6 No Default. No Event of Default or Unmatured Event of Default exists
or would result from the incurring of any Obligations by any Borrower. As of the
Effective Date, neither DASI nor any Subsidiary is in default under or with
respect to any Contractual Obligation in any respect which, individually or
together with all other such defaults, could reasonably be expected to have a
Material Adverse Effect, or that would, if such default had occurred after the
Effective Date, create an Event of Default under subsection 12.1(e).
9.7 ERISA Compliance.
(a) During the twelve consecutive month period prior to the date of
the initial Credit Extension to the Borrowers and prior to the date of any other
Credit Extension hereunder, no formal steps have been taken to terminate any
material Pension Plan other than in a standard termination under Section 4041(b)
of ERISA, and no contribution failure has occurred with respect to any material
Pension Plan sufficient to give rise to a Lien under Section 302(f) of ERISA. No
condition exists or event or transaction has occurred with respect to any
material Pension Plan which (i) could result in the incurrence by a Borrower or
any Subsidiary of any material liability, fine or penalty, other than the
liability to make contributions when due in the ordinary course and to pay
premiums to the PBGC or any similar applicable foreign entity or individuals or
(ii) could result in the incurrence by an ERISA Affiliate (other than such
Borrower and its Subsidiaries) of any material liability, fine or penalty other
than conditions, events or transactions which could not reasonably be expected
to result in the incurrence by such Borrower or any Subsidiary of any material
liability.
(b) Except for liabilities arising under the terms and conditions,
as in effect on the date of the initial Credit Extensions to the Borrowers, with
respect to each Borrower and its Subsidiaries, of the Plans disclosed in
Schedule 9.7, no Borrower nor any Subsidiary has any material contingent
liability with
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respect to any post-retirement benefit under a Welfare Plan or similar
applicable foreign plan, other than (i) liability for continuation coverage
described in Part 6 of Title I of ERISA or (ii) a modification of, or addition
to, the retiree benefit obligations disclosed at Schedule 9.7 which when taken
together with any other addition or modification since the initial Credit
Extensions to the Borrowers, with respect to each Borrower and its Subsidiaries,
does not materially increase such Borrower's and its Subsidiaries annual cost of
providing such benefits.
(c) All statistics provided to the Agent or any Lender relating to
the funded status of the Pension Plans or to post-retirement benefit expenses
and liabilities are based on actuarial assumptions that are reasonable
individually and in the aggregate.
9.8 Use of Proceeds; Margin Regulations. The proceeds of the Loans are to
be used solely for the purposes set forth in and permitted by Section 10.12 and
Section 11.7. Neither DASI nor any Subsidiary is generally engaged in the
business of purchasing or selling Margin Stock or extending credit for the
purpose of purchasing or carrying Margin Stock.
9.9 Title to Properties. DASI and its Subsidiaries have good record and
marketable title in fee simple to, or valid leasehold interests in, all real
property necessary or used in the ordinary conduct of their respective
businesses, except for such defects in title as could not, individually or in
the aggregate, have a Material Adverse Effect. As of the Effective Date, the
property of DASI and its Subsidiaries is subject to no Liens, other than
Permitted Liens. To secure the Obligations, the Agent has a perfected, first
priority security interest in all Collateral (other than Excluded Property),
subject to Permitted Liens, Section 10.14 and Section 14.22.
9.10 Taxes. DASI and its Subsidiaries have filed all material tax returns
and reports required to be filed, and have paid all material taxes, assessments,
fees and other governmental charges (other than immaterial amounts thereof)
levied or imposed upon them or their properties, income or assets otherwise due
and payable, except those which are being contested in good faith by appropriate
proceedings and for which adequate reserves have been provided in accordance
with GAAP. There is no proposed tax assessment against DASI or any Subsidiary
that would, if made, have a Material Adverse Effect.
9.11 Financial Condition.
(a) The audited consolidated financial statements of DASI and its
Subsidiaries dated December 31, 1997:
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(i) were prepared in accordance with GAAP consistently applied
throughout the periods covered thereby, except as otherwise
expressly noted therein; and
(ii) fairly present in all material respects the financial
condition of DASI and its Subsidiaries as of the dates thereof and
results of operations for the periods covered thereby.
(b) Since December 31, 1997, there has been no Material Adverse
Effect.
(c) To the best of DASI's knowledge, the audited consolidated
financial statements of Adwest and its Subsidiaries dated June 30, 1998:
(i) were prepared in accordance with U.K. generally accepted
accounting principles consistently applied throughout the periods covered
thereby, except as otherwise expressly noted therein; and
(ii) fairly present in all material respects the financial
condition of Adwest and its Subsidiaries as of the dates thereof and results of
operations for the periods covered thereby.
(d) To the best of DASI's knowledge, during the period from June 30,
1998 to the Effective Date, there has been no material adverse change in, or
material adverse effect upon, the operations, business, properties or condition
(financial or otherwise) of Adwest and its Subsidiaries taken as a whole (it
being understood that the making of the Adwest Acquisition by DASI and its
Subsidiaries does not constitute such an effect on Adwest).
(e) To the best of DASI's knowledge, the audited consolidated
financial statements of Excel and its Subsidiaries dated December 27, 1997:
(i) were prepared in accordance with GAAP consistently applied
throughout the periods covered thereby, except as otherwise expressly
noted therein; and
(ii) fairly present in all material respects the financial condition
of Excel and its Subsidiaries as of the dates thereof and results of
operations for the periods covered thereby.
(f) To the best of DASI's knowledge, during the period from
September 30, 1998 to the Effective Date, there has been no material adverse
change in, or material adverse effect upon, the operations, business, properties
or condition (financial or otherwise) of Excel and its Subsidiaries taken as a
whole (it being
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understood that the making of the Excel Acquisition by DASI and its Subsidiaries
does not constitute such an effect on Excel).
9.12 Environmental Matters. Except as disclosed in Schedule 9.12 each Loan
Party and all of its respective properties and facilities have complied with all
applicable Environmental Laws except in any such case where the failure to so
comply would not, individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect.
9.13 Regulated Entities. None of DASI, any Person controlling DASI or any
Subsidiary is an "Investment Company" within the meaning of the Investment
Company Act of 1940. No Loan Party is subject to regulation under the Public
Utility Holding Company Act of 1935, the Federal Power Act, the Interstate
Commerce Act, any state public utilities code, or any other Federal, state or
foreign statute or regulation limiting its ability to incur Indebtedness.
9.14 No Burdensome Restrictions. Neither DASI nor any Subsidiary is
subject to any restriction in any Organization Document or any Requirement of
Law which could reasonably be expected to have a Material Adverse Effect.
9.15 Copyrights, Patents, Trademarks and Licenses, etc. DASI or its
Subsidiaries own or are licensed or otherwise have the right to use all of the
patents, trademarks, service marks, trade names, copyrights, contractual
franchises, authorizations and other rights that are reasonably necessary for
the operation of their respective businesses, without any conflict with the
rights of any other Person which could, individually or in the aggregate with
all other such conflicts, reasonably be expected to have a Material Adverse
Effect. To the best knowledge of DASI and its Subsidiaries, no slogan or other
advertising device, product, process, method, substance, part or other material
now employed by DASI or any Subsidiary infringes upon any rights held by any
other Person, which infringement could, individually or in the aggregate with
all other such conflicts, reasonably be expected to have a Material Adverse
Effect.
9.16 Subsidiaries. As of the Effective Date, DASI has no Subsidiaries
other than those specifically disclosed in part (a) of Schedule 9.16 and has no
equity investments in any other corporation or entity other than those
specifically disclosed in part (b) of Schedule 9.16. As of the Excel Closing
Date, Excel has no Subsidiaries other than those specifically disclosed in part
(c) of Schedule 9.16 to and has no equity investments in any other corporation
or entity other than those specifically disclosed in part (d) of Schedule 9.16.
As of the Adwest Closing Date, Adwest has no Subsidiaries other than those
specifically disclosed in part (e) of Schedule 9.16 to and has no equity
investments in any other
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corporation or entity other than those specifically disclosed in part (f) of
Schedule 9.16.
9.17 Insurance. The properties of DASI and each of its Subsidiaries are
insured or reinsured with financially sound and reputable insurance companies
not Affiliates of DASI, in such amounts, with such deductibles and covering such
risks as are customarily carried by companies engaged in similar businesses and
owning similar properties in localities where DASI or such Subsidiary operates.
9.18 Accuracy of Information. To the best knowledge of each Loan Party,
all factual information heretofore or contemporaneously furnished by or on
behalf of a Loan Party in writing to the Agent or any Lender for purposes of or
in connection with this Agreement or any transaction contemplated hereby
(including the Schedules hereto) is, and all other such factual information
hereafter furnished in connection with this Agreement or any other Loan Document
by or on behalf of any Loan Party to the Agent or any Lender will be, true and
accurate in all material respects on the date as of which such information is
dated or certified and as of the date of execution and delivery of this
Agreement by the Agent and each Lender, and such information, to the best
knowledge of each Loan Party, is not, or shall not be, as the case may be,
incomplete by omitting to state any material fact necessary to make such
information not misleading. All projections prepared by or on behalf of any Loan
Party contained in any documents or materials furnished to the Agent or any
Lender have been prepared in good faith and represent such Loan Party's best
estimates as of the date of preparation of reasonably expected future
performance, but actual results may differ and such differences may be material.
9.19 Adwest Acquisition.
(a) The Adwest Announcement and the Adwest Offer Document delivered
to the Lenders pursuant to Section 8.2(g) constitute the Adwest Acquisition
Documents as in effect on the Effective Date.
(b) To the best of DASI's and its Affiliates' knowledge, the Adwest
Acquisition complies in all material respects with all applicable legal and
regulatory requirements (including the provisions of the U.K. Companies Act
1985, the U.K. City Code and the rules and regulations of the London Stock
Exchange), and all necessary governmental, regulatory, shareholder and other
consents and approvals required for the consummation of the Adwest Acquisition
have been, or prior to the consummation thereof will be, duly obtained and in
full force and effect, except to the extent that failure to obtain such consents
and approvals will not have a Material Adverse Effect or materially adversely
affect the value of Adwest.
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(c) To the best of DASI's and its Affiliates' knowledge, the
execution and delivery by the New UK Borrower of the Adwest Acquisition
Documents, and the consummation by the New UK Borrower of the Adwest
Acquisition, will not violate any statute or regulation of the United States,
Canada or of any state, province or other applicable jurisdiction, or any order,
judgment or decree of any court or governmental body, or result in a breach of,
or constitute a default under, any material agreement or indenture, or any order
or decree, affecting DASI or any of its Subsidiaries (including any entity which
will be a Subsidiary after giving effect to the Adwest Acquisition), except to
the extent such violations, breaches and defaults will not have a Material
Adverse Effect or materially adversely affect the value of Adwest.
9.20 Excel Acquisition.
(a) The Excel Acquisition Documents delivered to the Lenders
pursuant to Section 8.3(e) constitute the only agreements effecting the Excel
Acquisition in effect on the Excel Closing Date.
(b) To the best of DASI's and its Affiliates' knowledge, the Excel
Acquisition complies in all material respects with all applicable legal
requirements, and all necessary governmental, regulatory, shareholder and other
consents and approvals required for the consummation of the Excel Acquisition
have been, or prior to the consummation thereof will be, duly obtained and in
full force and effect, except to the extent that failure to obtain such consents
and approvals will not have a Material Adverse Effect or materially adversely
affect the value of Excel.
(c) To the best of DASI's and its Affiliates' knowledge, the
execution and delivery by DASI and its Affiliates of the Excel Acquisition
Documents, and the consummation by DASI and its Subsidiaries of the Excel
Acquisition, will not violate any statute or regulation of the United States,
Canada or of any state, province or other applicable jurisdiction, or any order,
judgment or decree of any court or governmental body, or result in a breach of,
or constitute a default under, any material agreement or indenture, or any order
or decree, affecting DASI or any of its Subsidiaries (including any entity which
will be a Subsidiary after giving effect to the Excel Acquisition), except to
the extent such violations, breaches and defaults will not have a Material
Adverse Effect or materially adversely affect the value of Excel.
9.21 Year 2000. DASI and its Subsidiaries have reviewed the areas within
their business and operations which could be adversely affected by, and have
developed or are developing a program to address on a timely basis, the "Year
2000 Problem" (that is the risk that computer applications used by DASI and its
Subsidiaries may be unable to recognize and perform properly date-sensitive
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functions involving certain dates prior to and any date after December 31,
1999). Based on such review and program, DASI reasonably believes that the "Year
2000 Problem" could not reasonably be expected to have a Material Adverse
Effect.
ARTICLE X
AFFIRMATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, or any Loan or
other Obligation shall remain unpaid or unsatisfied, or any Letter of Credit
shall remain outstanding, unless the Required Lenders waive compliance in
writing:
10.1 Financial Statements. DASI shall deliver to the Agent and each
Lender, in form and detail reasonably satisfactory to each Agent and the
Required Lenders, with sufficient copies for each Lender:
(a) as soon as available, but not later than 90 days after the end
of each fiscal year, a copy of the audited consolidated and unaudited
consolidating balance sheet of DASI and its Subsidiaries as at the end of such
year and the related audited consolidated and unaudited consolidating statements
of income, shareholders' equity and cash flows for such year, setting forth in
each case in comparative form to the extent required by GAAP the figures for the
previous fiscal year, and accompanied by the opinion of Arthur Andersen LLP or
another nationally-recognized independent public accounting firm selected by
DASI ("Independent Auditor"), which opinion (as to the consolidated financial
statements) (i) shall state that such financial statements present fairly in all
material respects the financial position of DASI and its Subsidiaries for the
periods indicated in conformity with GAAP and (ii) shall not be qualified and
shall not be limited because of a restricted or limited examination by the
Independent Auditor of any material portion of DASI's or any Subsidiary's
records and shall be delivered to the Agent;
(b) as soon as available, but not later than 45 days after the end
of each of the first three fiscal quarters of each fiscal year, a copy of the
unaudited consolidated and consolidating statements of financial position of
DASI and its Subsidiaries as of the end of such quarter and the related
statements of income and cash flows for the period commencing on the first day
and ending on the last day of such quarter, and certified by a Responsible
Officer as fairly presenting in all material respects, in accordance with GAAP
(subject to good-faith year-end adjustments and the absence of footnotes), the
financial position and the results of operations of DASI and the Subsidiaries;
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(c) so long as Trident Subordinated Debt is outstanding, as soon as
available, but not later than 90 days after the end of each fiscal year, a copy
of the audited consolidated balance sheet of Trident and its Subsidiaries as at
the end of such year and the related consolidated statements of income,
shareholders' equity and cash flows for such year, setting forth in each case in
comparative form the figures for the previous fiscal year to the extent required
by GAAP, and accompanied by the opinion of the Independent Auditor, which
opinion (i) shall state that such consolidated financial statements present
fairly in all material respects the consolidated financial position of Trident
and its Subsidiaries for the periods indicated in conformity with GAAP and (ii)
shall not be qualified and shall not be limited because of a restricted or
limited examination by the Independent Auditor of any material portion of
Trident's or any Subsidiary's records and shall be delivered to the Agent; and
(d) so long as Trident Subordinated Debt is outstanding, as soon as
available, but not later than 45 days after the end of each of the first three
fiscal quarters of each fiscal year, a copy of the unaudited consolidated
statements of financial position of Trident and its Subsidiaries as of the end
of such quarter and the related statements of income and cash flows for the
period commencing on the first day and ending on the last day of such quarter,
and certified by a Responsible Officer as fairly presenting in all material
respects, in accordance with GAAP (subject to good-faith year-end adjustments
and the absence of footnotes), the financial position and the results of
operations of Trident and the Trident Subsidiaries.
10.2 Certificates; Other Information. DASI shall furnish to each Agent and
each Lender:
(a) concurrently with the delivery of the financial statements
referred to in subsection 10.1(a), a certificate of the Independent Auditor
stating that in making the examination necessary therefor no knowledge was
obtained of any Event of Default or Unmatured Event of Default, except as
specified in such certificate (it being understood that such certificate may be
limited to accounting matters and disclaim responsibility for legal
interpretations);
(b) concurrently with the delivery of the financial statements
referred to in subsections 10.1(a) and (b), a Compliance Certificate executed by
a Responsible Officer;
(c) promptly, copies of all financial statements and reports that
DASI sends to its shareholders, and copies of all financial statements and
regular, periodical or special reports
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(including Forms 20-F and 6-K) that DASI or any Subsidiary may make to, or file
with, the SEC;
(d) promptly when available and in any event within ninety (90)
Business Days after the last day of each fiscal year of DASI, a budget for the
next succeeding fiscal year, which budget shall be prepared on a fiscal quarter
by fiscal quarter basis for the next succeeding fiscal year in a manner and form
permitting easy comparison to financial statements delivered pursuant to Section
10.1(a), and shall contain a projected, consolidated balance sheet and statement
of cash flow and consolidated and consolidating statement of earnings of DASI
and its Subsidiaries for such succeeding fiscal year, prepared in reasonable
detail by a Responsible Officer of DASI;
(e) promptly, such additional information regarding the business,
financial or corporate affairs of DASI or any Subsidiary as the Agent or any
Lender may from time to time request.
10.3 Notices. Promptly upon a Responsible Officer learning thereof, DASI
shall notify the Agent and each Lender:
(a) of the occurrence of any Event of Default or Unmatured Event of
Default;
(b) of any of the following matters that has resulted or could
reasonably be expected to result in a Material Adverse Effect: (i) any breach or
non-performance of, or any default under, a Contractual Obligation of DASI or
any Subsidiary; (ii) any dispute, litigation, investigation, proceeding or
suspension between DASI or any Subsidiary and any Governmental Authority; or
(iii) the commencement of, or any material development in, any litigation or
proceeding affecting DASI or any Subsidiary, including pursuant to any
applicable Environmental Laws;
(c) of the occurrence of any of the following events if such event
has resulted or could reasonably be expected to result in any liability to DASI
or any ERISA Affiliate which is material to DASI and its Subsidiaries taken as a
whole or in a Lien under Section 302(f) of ERISA (but in no event more than ten
days after such event), and deliver to each Agent and each Lender a copy of any
notice with respect to such event that is filed with a Governmental Authority
and any notice delivered by a Governmental Authority to DASI or any ERISA
Affiliate with respect to such event:
(i) an ERISA Event;
(ii) the adoption of, or the commencement of contributions to,
any Plan subject to Section 412 of the Code by DASI or any ERISA
Affiliate; or
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(iii) the adoption of any amendment to a Plan subject to
Section 412 of the Code.
Each notice under this Section shall be accompanied by a written statement
by a Responsible Officer setting forth details of the occurrence referred to
therein, and stating what action DASI or any affected Subsidiary proposes to
take with respect thereto. Each notice under subsection 10.3(a) shall describe
with particularity any and all clauses or provisions of this Agreement or other
Loan Document that have been (or foreseeably will be) breached or violated.
10.4 Preservation of Corporate Existence, Etc. DASI shall, and shall cause
each Subsidiary to:
(a) preserve and maintain in full force and effect its existence and
good standing under the laws of its state or jurisdiction of organization;
(b) preserve and maintain in full force and effect all material
governmental rights, privileges, qualifications, permits, licenses and
franchises necessary in the normal conduct of its business except in connection
with transactions permitted by Section 11.3 and sales of assets permitted by
Section 11.2;
(c) use reasonable efforts, in the ordinary course of business, to
preserve its business organization and goodwill; and
(d) preserve or renew all of its registered patents, registered
trademarks, trade names and service marks, the non-preservation of which could
reasonably be expected to have a Material Adverse Effect.
10.5 Maintenance of Property. DASI shall, and shall cause each Subsidiary
to, maintain and preserve all its material property which is used or useful in
its business in accordance with the standard of care typical in the industry in
the operation and maintenance of its facilities.
10.6 Insurance. DASI shall, and shall cause each Subsidiary to, maintain,
with financially sound and reputable independent insurers, insurance or
reinsurance with respect to its properties and business against loss or damage
of the kinds customarily insured against by Persons engaged in the same or
similar business, of such types and in such amounts as are customarily carried
under similar circumstances by such other Persons.
10.7 Payment of Obligations. DASI shall, and shall cause each Subsidiary
to, pay and discharge as the same shall become due and payable all of its
obligations and liabilities, including:
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(a) all material tax liabilities, assessments and governmental
charges or levies upon it or its properties or assets; and
(b) all lawful claims which, if unpaid, would by law become a Lien
(other than a Permitted Lien) upon its property;
unless, in each case, the same are being contested in good faith by appropriate
proceedings and adequate reserves in accordance with GAAP are being maintained
by DASI or such Subsidiary with respect thereto.
10.8 Compliance with Laws. DASI shall, and shall cause each Subsidiary to,
comply in all material respects with all material Requirements of Law of any
Governmental Authority having jurisdiction over it or its business (including in
respect of pension plans and the Federal Fair Labor Standards Act), except such
as may be contested in good faith or as to which a bona fide dispute may exist
or such noncompliance which in the aggregate could not be reasonably expected to
result in a Material Adverse Effect.
10.9 Compliance with ERISA. DASI shall, and shall cause each of its ERISA
Affiliates to: (a) maintain each material Plan in compliance in all material
respects with the applicable provisions of ERISA, the Code and other federal or
state law; (b) cause each material Plan which is qualified under Section 401(a)
of the Code to maintain such qualification; and (c) make all required
contributions to any material Plan subject to Section 412 of the Code.
10.10 Inspection of Property and Books and Records. DASI shall, and shall
cause each Subsidiary to, maintain proper books of record and account, in which
full, true and correct entries in order to permit the preparation of DASI's
consolidated financial statements in conformity with GAAP shall be made of all
financial transactions and matters involving the assets and business of DASI and
such Subsidiary. DASI shall, and shall cause each Subsidiary to, permit
representatives and independent contractors of any Agent or any Lender to visit
and inspect any of their respective properties, to examine their respective
corporate, financial and operating records, and make copies thereof or abstracts
therefrom, and to discuss their respective affairs, finances and accounts with
their respective directors, officers, and independent public accountants, at
such reasonable times during normal business hours and as often as may be
reasonably desired, upon reasonable advance notice to DASI; provided, however,
when an Event of Default exists the Agent or any Lender may do any of the
foregoing at any time during normal business hours and without advance notice.
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10.11 Environmental Laws. DASI shall, and shall cause each Subsidiary to,
conduct its operations in material compliance with all Environmental Laws,
except for such noncompliance which in the aggregate could not be reasonably
expected to result in a Material Adverse Effect.
10.12 Use of Proceeds. DASI and its Subsidiaries shall use the proceeds of
the Loans to fund the Adwest Acquisition, the Excel Acquisition and other
Acquisitions permitted under Section 11.4 to refinance Debt to be Repaid, to
provide working capital for DASI and its Subsidiaries and for other general
corporate purposes not in contravention of any Requirement of Law or of any Loan
Document.
10.13 Further Assurances. DASI shall, and shall cause each applicable
Subsidiary to, take such actions as are reasonably necessary, or as the Agent,
or any Lender may reasonably request from time to time, to ensure that (a) the
Obligations are unconditionally guaranteed by each Guarantor, and (b) the
Obligations are secured by first priority perfected Liens in favor of the Agent,
for the benefit of the Agent and the Lenders, on all Collateral, subject only to
Permitted Liens.
10.14 Security.
(a) Each Borrower hereby agrees that it will, and will cause each
Material Subsidiary to, take promptly such actions, to the extent permitted by
applicable law, as the Agent or the Required Lenders may from time to time
reasonably request to establish and maintain first-priority, perfected security
interests in and Liens on all of their real and personal property as collateral
(subject to other Permitted Liens) pursuant to the applicable Collateral
Documents and to execute and deliver to the Agent a Guaranty, in each case
reasonably satisfactory to the Agent and the Required Lenders to secure and
support the Obligations (except to the extent otherwise expressly provided
herein or in any Collateral Document), including reaffirmations and, if
appropriate, amendments of Guaranties and Collateral Documents previously
provided under the Existing Credit Agreement; provided that the Guaranties and
the Collateral of Trident and any Trident Subsidiary shall support and secure
only Trident Obligations; and provided, further, that the granting of such
Guaranty and/or Collateral by any such Subsidiary does not create any material
increased income tax liability on the part of DASI and its Subsidiaries; and
provided, further, that the New UK Borrower and its U.K. Subsidiaries shall not
be required to effect such actions required under this Section 10.14(a) earlier
than required under Section 10.17; and provided, further, that the granting of
such Guaranty and/or Collateral by any other non-U.S. Subsidiary shall not be
required prior to a request therefor to DASI from the Agent or the Required
Lenders; upon such request such Guaranty and/or Collateral shall be granted as
soon as practicable but in any event within 60
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days of such request unless such grant would violate a material obligation of
the grantor to a non-Affiliate under Indebtedness permitted under Section 11.5.
(b) Each Borrower agrees to cause each Person that becomes a
Material Subsidiary on or after the initial Closing Date (subject, in the case
of the Adwest Group, to Section 10.17) to promptly execute and deliver to the
Agent a Guaranty, and grant to the Agent, for the benefit of the Agent and the
Lenders, such security interests and Liens as are required under Section
10.14(a). To the extent a Material Subsidiary is required to provide a Guaranty
or Collateral under this Section 10.14, each Borrower further agrees that it
will, or will cause the applicable Subsidiary owning each Person that becomes a
Material Subsidiary after the initial Closing Date to, pledge pursuant to a
Pledge Agreement or to charge pursuant to a Charge and Memorandum of Deposit or
other appropriate Collateral Document reasonably satisfactory to the Agent and
the Lenders executed by a Borrower or such applicable Subsidiary, as the case
may be, 100% of the shares of capital stock or other ownership interests of such
Person (65% of such shares of such Person if such Person is a corporate
Subsidiary which is not incorporated in the United States) owned by such
Borrower or such applicable Subsidiary, as the case may be.
10.15 Interest Rate Protection. On or before March 31, 2000, DASI shall
cause the interest rate on not less than 33% of the aggregate Dollar Equivalent
principal amount of the then-outstanding Indebtedness for borrowed money of DASI
and its Subsidiaries (including the Obligations) to be fixed for a period of
three years from March 31, 2000, either through the issuance of fixed rate
Indebtedness or by obtaining interest rate protection having terms and with
counterparties reasonably satisfactory to the Agent.
10.16 Undertakings Relating to the Conduct of the Adwest Offer. The New UK
Borrower hereby covenants and undertakes with the Agent and the Lenders that it
shall:
(a) not make extensions to the Adwest Offer nor make any material
variation, revision, amendment or supplement to the terms and conditions of the
Adwest Offer or the Adwest Offer Document without the Required Lenders' prior
written consent (not to be unreasonably withheld or delayed);
(b) not, subject to the New UK Borrower's obligations under Note 2
to Rule 13 of the U.K. City Code, without the prior written consent of the
Required Lenders (which shall not be unreasonably withheld or delayed where all
the conditions of the Adwest Offer Document follow those stated in the Adwest
Announcement) declare the Adwest Offer unconditional in all respects;
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(c) not take any steps which would give rise to an obligation on the
New UK Borrower to make a mandatory bid for Adwest under Rule 9 of the U.K. City
Code;
(d) ensure that, prior to publication, all publicity material, press
releases and announcements intended to be published in relation to the Adwest
Offer or the Adwest Offer Document by or on behalf of the New UK Borrower shall
insofar as it refers to the Required Lenders or the financing of the Adwest
Offer or any of the conditions of the Adwest Offer Document be approved by the
Required Lenders in writing (such consent not to be unreasonably withheld or
delayed), provided that the Required Lenders shall not withhold their consent to
the making of any announcement required to be made to comply with the U.K. City
Code or the rules and regulations of the London Stock Exchange;
(e) at all times conduct the Adwest Offer in accordance with all
applicable laws and regulations (including the provisions of the U.K. Companies
Act 1985, the U.K. City Code and the rules and regulations of the London Stock
Exchange);
(f) procure that its financial advisers keep the Agent and the
Lenders informed as to material developments relating to the Adwest Offer;
(g) make full written disclosure to the Agent and the Lenders,
immediately upon becoming aware thereof, of all information coming to the
attention of the New UK Borrower or DASI or any Subsidiary of the New UK
Borrower or DASI (i) which is material to the Adwest Offer; or (ii) which is
material to the decision whether to waive any term and condition of the Adwest
Offer Document which will not be satisfied or will be required to be waived, on
or before the Adwest Success Date; and
(h) not, without the prior written consent of the Required Lenders,
extend the period for acceptance of the Adwest Offer beyond a period of four
months from the date of the posting of the Adwest Offer Document to shareholders
of Adwest (or such longer period as may be expressly agreed in writing between
the New UK Borrower and the Lenders) except where the Adwest Offer has gone
unconditional in all respects prior to that date or where a notice under Section
429 of the U.K. Companies Act 1985 has been served by the New UK Borrower prior
to that date.
10.17 Undertakings Relating to the Conduct of Adwest and its Subsidiaries
after the Adwest Success Date. The New UK Borrower hereby covenants and
undertakes with the Agent and the Lenders that it shall procure:
(a) that Adwest shall be re-registered as a private company as soon
as practicable under Section 53 of the U.K.
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Companies Act 1985 but in any event by no later than 14 weeks after the Adwest
Success Date and, as soon as practicable, take all steps as are necessary for it
to request that Adwest shall be de-listed by the London Stock Exchange
(including sending a circular to shareholders of Adwest if required to do so);
(b) as soon as practicable within the provisions of Part XIIIA of
the U.K. Companies Act 1985, serve a notice under Section 429 of the U.K.
Companies Act 1985 or, if it has failed to acquire the requisite number of
shares within the requisite period applicable under Sections 428 to 430 of such
Act or if such notice is set aside by the court or if the service of a notice
under Section 429 is not practicable within the time limits set out therein, the
New UK Borrower shall forthwith discuss with the Lenders whether or not to
propose a compromise or arrangement between Adwest and its shareholders under
Section 425 of the U.K. Companies Act 1985 or make such other proposal for
acquiring the Adwest Shares not then held by the New UK Borrower as the New UK
Borrower shall determine with the agreement of the Required Lenders (such
agreement and approval not to be unreasonably withheld);
(c) that no member of the Adwest Group shall alter its accounting
reference period (other than to conform it to DASI's accounting reference
period) without first notifying the Agent and the Lenders (in which event the
Required Lenders may require such change in financial covenants contained in
this Agreement as will fairly reflect the change notified to it);
(d) as soon as possible and in any event by no later than 14 weeks
after the Adwest Success Date that it and its U.K. Subsidiaries will use all
reasonable endeavors to implement and consummate the provisions and procedures
contained in Sections 155- 158 of the U.K. Companies Act 1985 for the purposes
of enabling it and its U.K. Subsidiaries to grant the security interests and
give the guarantees contemplated by this Agreement;
(e) that it and its U.K. Subsidiaries shall use all reasonable
endeavors to deliver to the Agent and the Lenders evidence satisfactory to the
Agent, the Required Lenders and their counsel (including auditor's net asset
letters addressed to the Agent and the Lenders) that each of such companies has
complied with the provisions and procedures required by Sections 155-158 of the
U.K. Companies Act 1985; and
(f) that on the date on which the provisions and procedures
contained in Sections 155-158 of the U.K. Companies Act 1985 have been
consummated by it and each of its U.K. Subsidiaries (the "S. 155 Date"), (i)
each of such Subsidiaries execute and deliver a Guaranty dated the S. 155 Date
and (ii) each of it and its U.K. Subsidiaries execute and deliver a Charge and
Memorandum of Deposit to which it is required to be a party together with the
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share certificates evidencing the shares referred to in such documents and duly
executed blank stock transfer forms and a Debenture, and (iii) it and its U.K.
Subsidiaries deliver, in form and substance satisfactory to the Agent, the
Required Lenders and their counsel, the items referred to in Schedule 10.17.
10.18 Change of Control Effecting Indebtedness of Adwest. If, following
the change of control of Adwest arising as a result of the Adwest Offer becoming
or being declared wholly unconditional in all respects, any existing lender to
Adwest or any member of the Adwest Group exercises or is capable of exercising
its right to require repayment of any Indebtedness or its right to terminate any
facility or to require additional security or other similar rights, the New UK
Borrower shall, and shall procure that Adwest and/or any member of the Adwest
Group shall, notify the Agent and the Lenders stating the details of the
Indebtedness or facility including the provisions giving rise to such a right
and any existing security in respect of such Indebtedness or facility (together
with a copy of the relevant loan or facility agreement and security
documentation) and unless the Required Lenders gives their prior written
consent, the New UK Borrower, Adwest or any member of the Adwest Group shall:
(a) commence negotiations with the relevant lender for the
continuation of such borrowing or facility; and
(b) keep the Agent and the Lenders fully informed of the progress of
such negotiations;
it being understood that, notwithstanding the foregoing provisions of this
Section 10.18 and subject to Section 8.2, the New UK Borrower may apply proceeds
of Adwest Acquisition Loans in repayment of such Indebtedness at its discretion.
ARTICLE XI
NEGATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, or any Loan or
other Obligation shall remain unpaid or unsatisfied, or any Letter of Credit
shall remain outstanding, unless the Required Lenders waive compliance in
writing:
11.1 Limitation on Liens. DASI shall not, and shall not permit any
Subsidiary to, directly or indirectly, make, create, incur, assume or suffer to
exist any Lien upon or with respect to
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any part of its property, whether now owned or hereafter acquired, other than
the following ("Permitted Liens"):
(a) any Lien existing on property of (i) DASI or any Subsidiary
(including Trident) on the Effective Date, and set forth in Schedule 11.1
securing Indebtedness outstanding on such date or a refinancing of such
Indebtedness, (ii) any Excel Subsidiary on the Excel Closing Date and set forth
in Schedule 11.1 securing Indebtedness outstanding on such date or a refinancing
of such Indebtedness, or (iii) any member of the Adwest Group on the Adwest
Closing Date and set forth in Schedule 11.1 securing Indebtedness outstanding on
such date or a refinancing of such Indebtedness;
(b) any Lien created under any Loan Document (which Liens may also
secure Other Qualified Secured Agreements in an aggregate principal Dollar
Equivalent amount for all such agreements not in excess of U.S. $50,000,000);
(c) Liens for taxes, fees, assessments or other governmental charges
which are not delinquent or being diligently contested in good faith by
appropriate proceedings and for which adequate reserves in accordance with GAAP
shall have been set aside on its books;
(d) carriers', warehousemen's, mechanics', landlords',
materialmen's, repairmen's or other similar Liens arising in the ordinary course
of business which are not delinquent or remain payable without penalty or which
are being contested in good faith and by appropriate proceedings;
(e) Liens (other than any Lien imposed by ERISA) consisting of
pledges or deposits required in the ordinary course of business in connection
with workers' compensation, unemployment insurance and other social security
legislation;
(f) Liens on the property of DASI or any Subsidiary securing (i) the
non-delinquent performance of bids, trade contracts (other than for borrowed
money), leases or statutory obligations, (ii) contingent obligations on surety
or appeal bonds, and (iii) other non-delinquent obligations of a like nature;
(g) Liens consisting of judgment or judicial attachment liens
(including prejudgment attachment), provided that the enforcement of such Liens
is effectively stayed and all such liens in the aggregate at any time
outstanding for DASI and its Subsidiaries do not exceed a Dollar Equivalent
amount of U.S.$20,000,000;
(h) easements, rights-of-way, restrictions and other similar
encumbrances incurred in the ordinary course of business which, individually or
in the aggregate, do not materially
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interfere with the ordinary conduct of the businesses of DASI and its
Subsidiaries;
(i) purchase money security interests on any property acquired or
held by DASI or any Subsidiary securing Indebtedness incurred or assumed for the
purpose of financing all or any part of the cost of acquiring such property or
any refinancing of such Indebtedness; provided that (i) any such Lien attaches
to such property concurrently with or within 90 days after the acquisition
thereof, (ii) such Lien attaches solely to the property so acquired in such
transaction, (iii) the principal amount of the Indebtedness secured thereby does
not exceed 100% of the cost of such property, and (iv) the principal amount of
the Indebtedness secured by any and all such purchase money security interests,
together with all Indebtedness arising under capital leases permitted solely by
subsection (j) below, shall not at any time exceed a Dollar Equivalent amount of
U.S.$40,000,000;
(j) Liens securing obligations in respect of capital leases on
assets subject to such leases, provided that the aggregate amount of all
Indebtedness arising under capital leases permitted solely by this subsection
(j), plus the aggregate amount of all Indebtedness secured by purchase money
security interests permitted solely by subsection (i) above, shall not at any
time exceed a Dollar Equivalent amount of U.S.$40,000,000;
(k) Liens arising solely by virtue of any statutory or common law
provision relating to banker's liens, rights of set-off or similar rights and
remedies as to deposit accounts or other funds maintained with a creditor
depository institution; provided that (i) such deposit account is not a
dedicated cash collateral account and is not subject to restrictions against
access by DASI or any Subsidiary in excess of those set forth by regulations
promulgated by the FRB, and (ii) such deposit account is not intended by DASI or
any Subsidiary to provide collateral to the depository institution;
(l) Liens existing on any asset prior to the date of acquisition
thereof by any Subsidiary and not created in contemplation of such acquisition;
(m) Liens existing on any asset of any Person at the time such
Person becomes a Subsidiary or is merged or consolidated with or into a
Subsidiary and, in each case, not created in contemplation of such event; and
(n) Liens (excluding Liens on inventory and accounts receivable) not
otherwise permitted hereunder securing obligations not at any time exceeding in
the aggregate a Dollar Equivalent amount of U.S.$10,000,000.
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11.2 Disposition of Assets. DASI shall not, and shall not permit any
Subsidiary to, directly or indirectly, sell, assign, lease, convey, transfer or
otherwise dispose of (whether in one or a series of transactions) any property
(including (i) accounts and notes receivable, with or without recourse, and (ii)
the stock of any Subsidiary (except as permitted by Section 11.3), but excluding
marketable securities) or enter into any agreement to do any of the foregoing,
except:
(a) dispositions of inventory and of used, obsolete, worn-out or
surplus assets, equipment, and the licensing of technology or intellectual
property rights, all in the ordinary course of business;
(b) the sale of assets to the extent that such assets are exchanged
for credit against the purchase price of productive assets, or the proceeds of
such sale are reasonably promptly applied to the purchase price of productive
assets;
(c) sales and dispositions by a Loan Party or a Subsidiary to
another Loan Party or Subsidiary for fair market value;
(d) sales and dispositions described in clause (ii) of the
definition of "Excepted Asset Sales" in Section 1.1; and
(e) dispositions of property (other than any disposition primarily
of accounts and notes receivable) not otherwise permitted hereunder which are
made for fair market value; provided that at the time of any such disposition,
(i) no Event of Default or Unmatured Event of Default shall exist or shall
result therefrom, and (ii) the aggregate value of all property so disposed of by
DASI and its Subsidiaries after the Effective Date shall not exceed 10% of
consolidated total assets of DASI and its Subsidiaries after giving effect to
such proposed disposition.
11.3 Consolidations and Mergers. DASI shall not, and shall not permit any
Subsidiary to, merge, amalgamate, consolidate with or into, or convey, transfer,
lease or otherwise dispose of (whether in one transaction or in a series of
transactions) all or substantially all of its assets (whether now owned or
hereafter acquired) to or in favor of any Person, except:
(a) any Non-Trident Subsidiary (or, if the Trident Subordinated Debt
has been repaid in full, any Subsidiary) may merge with DASI (provided that DASI
shall be the surviving corporation) or with any one or more Non-Trident
Subsidiaries (or, if the Trident Subordinated Debt has been repaid in full, with
any one or more Subsidiaries) (provided that if any transaction shall be between
a Subsidiary and a Wholly-Owned Subsidiary, the Wholly-Owned Subsidiary shall be
the surviving corporation);
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(b) any Trident Subsidiary may merge with Trident(provided that
Trident shall be the surviving corporation) or with any one or more Trident
Subsidiaries (provided that if any transaction shall be between a Subsidiary and
a Wholly-Owned Subsidiary, the Wholly-Owned Subsidiary shall be the surviving
corporation);
(c) any Subsidiary may sell all or substantially all of its assets
(upon voluntary liquidation or otherwise) to Dura or another Wholly-Owned
Subsidiary;
(d) any merger, amalgamation or consolidation in connection with a
disposition permitted by Section 11.2 or an Acquisition permitted by Section
11.4; and
(e) Excel may merge into Dura as contemplated under the Excel
Acquisition Documents.
11.4 Loans and Investments. DASI shall not, and shall not permit any
Subsidiary to, purchase or acquire, or make any commitment to purchase or
acquire, any capital stock, equity interest, or obligations or other securities
of, or any interest in, any Person, or make or commit to make any Acquisition,
or make or commit to make any advance, loan, guarantee, extension of credit or
capital contribution to or any other investment in, any Person (including any
Affiliate of DASI) (any of the foregoing, an "Investment"), except for:
(a) investments in Cash Equivalent Investments;
(b) extensions of credit in the nature of accounts receivable or
notes receivable arising from the sale or lease of goods or services in the
ordinary course of business;
(c) Investments by DASI or any Non-Trident Subsidiary in Dura or in
any Wholly-Owned Non-Trident Subsidiary;
(d) Investments by Trident or any Trident Subsidiary in Trident or
in any Wholly-Owned Trident Subsidiary;
(e) if the Trident Subordinated Debt is no longer outstanding,
Investments by DASI or any Subsidiary in Dura or in any Wholly-Owned Subsidiary;
(f) Investments by Dura or any Subsidiary in tooling so long as the
amount by which such Investments exceed the amount of the contractual
obligations to reimburse Dura or such Subsidiary for such tooling is not greater
than U.S.$20,000,000 at any time;
(g) Investments in Joint Ventures not resulting in an Acquisition
and minority interests; provided that the aggregate
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amount of any such Investment, plus the aggregate value of all such Investments
(excluding Investments which constitute part of the Trident Acquisition) made by
DASI or any Subsidiary after the date hereof or outstanding as of the date of
such Investment, shall not exceed 10% of the consolidated net worth of DASI;
provided that if any Interim Term Loan remains outstanding, the aggregate Dollar
Equivalent amount of all such Investments under this clause (g) and the
following clause (h) shall not exceed U.S.$100,000,000;
(h) Investments made in order to consummate Acquisitions; provided
that (i) no Event of Default or Unmatured Event of Default exists or will result
therefrom (including any such event under Section 11.15), (ii) the board of
directors or equivalent governing body of the acquiree or the parent of the
acquiree shall have given its written consent to or approval of such
Acquisition, and (iii) if any Interim Term Loan remains outstanding, the
aggregate Dollar Equivalent amount of all such Investments under the foregoing
clause (g) and this clause (h) shall not exceed U.S.$100,000,000;
(i) pledges or deposits required in the ordinary course of business
in connection with workmen's compensation, unemployment insurance and other
social security legislation;
(j) the Adwest Acquisition, the Excel Acquisition and Investments
existing on the Effective Date or, in the case of the Adwest Group, on the
Adwest Closing Date, or in the case of the Excel Subsidiaries, on the Excel
Closing Date, and in each case listed on Schedule 11.4(j);
(k) purchases of Trident Subordinated Debt so long as no Event of
Default or Unmatured Event of Default exists or will result therefrom;
(l) purchases of stock of DASI permitted under Section 11.14; and
(m) other advances, loans, guarantees or extensions of credit
(excluding advances, loans, guarantees or extensions of credit of the types
described in subsection 11.4(g)) in the ordinary course of business by DASI or
any Subsidiary not at any time exceeding in the aggregate a Dollar Equivalent
amount of 5% of the consolidated net worth of DASI.
11.5 Limitation on Indebtedness. DASI shall not, and shall not permit any
Subsidiary to, create, incur, assume, suffer to exist, or otherwise become or
remain directly or indirectly liable with respect to, any Indebtedness, except:
(a) Indebtedness incurred pursuant to this Agreement;
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(b) Indebtedness consisting of Contingent Obligations permitted
pursuant to Section 11.8;
(c) Indebtedness existing on the Effective Date which is Adwest Debt
to be Repaid or Excel Debt to be Repaid or is set forth in Schedule 11.5;
(d) Indebtedness of Subsidiaries incurred in connection with capital
leases or purchase money security interests to the extent permitted by
subsections 11.1(i) or (j);
(e) unsecured Indebtedness of Subsidiaries to DASI and, to the
extent the credit extension creating such Indebtedness is permitted by
subsection 11.4(c), (d) or (e), of any Subsidiary to any other Subsidiary;
(f) Subordinated Indebtedness; provided that the proceeds of any
such Indebtedness are applied in accordance with Section 2.8;
(g) Indebtedness of Trident owing to Dura, the proceeds of which are
used to purchase Trident Subordinated Debt to the extent permitted under
subsection 11.4(k);
(h) Trident Subordinated Debt;
(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.$50,000,000 or, with respect to
any one Subsidiary, U.S.$20,000,000; and
(j) Trust Preferred Stock Debentures.
11.6 Transactions with Affiliates. DASI shall not, and shall not permit
any Subsidiary to, enter into any transaction with any Affiliate of DASI (other
than DASI or a Subsidiary), except upon fair and reasonable terms no less
favorable to DASI or such Subsidiary than would obtain in a comparable
arm's-length transaction with a Person not an Affiliate of DASI or such
Subsidiary.
11.7 Use of Proceeds. DASI shall not, and shall not permit any Subsidiary
to, use any portion of the Loan proceeds or any Letter of Credit, directly or
indirectly, (i) to purchase or carry Margin Stock, (ii) to repay or otherwise
refinance indebtedness of DASI or others incurred to purchase or carry Margin
Stock, (iii) to extend credit for the purpose of purchasing or carrying any
Margin Stock, or (iv) to acquire any security in any transaction that is subject
to Section 13 or 14 of the Exchange Act.
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11.8 Contingent Obligations. DASI shall not, and shall not permit any
Subsidiary to, create, incur, assume or suffer to exist any Contingent
Obligations except:
(a) endorsements for collection or deposit in the ordinary course of
business;
(b) Swap Contracts entered into in the ordinary course of business
as bona fide hedging transactions (including any Swap Contract entered into
pursuant to Section 10.15);
(c) Contingent Obligations of (i) DASI and its Subsidiaries
(including Trident) existing as of the Effective Date, (ii) the Adwest Group
existing as of the Adwest Closing Date, and (iii) the Excel Subsidiaries
existing as of the Excel Closing Date, and (in each case of clauses (i), (ii)
and (iii)) listed in Schedule 11.8;
(d) Contingent Obligations arising under (i) Surety Instruments
arising in the ordinary course of business of DASI or the applicable Subsidiary
or (ii) any guaranty of the performance of contractual obligations (other than
obligations to pay money unless permitted under Section 11.4(m)) of other
Persons so long as such guaranty arises in connection with a project in which
DASI or the applicable Subsidiary is otherwise involved in the ordinary course
of business;
(e) Guaranty Obligations of DASI or any Non-Trident Subsidiary in
respect of the obligations of Dura or any Wholly-Owned Non-Trident Subsidiary;
(f) Guaranty Obligations of Trident or any Trident Subsidiary in
respect of the obligations of Trident or any Wholly-Owned Trident Subsidiary;
(g) if the Trident Subordinated Debt is no longer outstanding,
Guaranty Obligations of DASI or any Subsidiary in respect of the obligations of
Dura or any Wholly-Owned Subsidiary;
(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 subsection (h) which are incurred after the
date hereof and which are permitted solely by subsection 11.4(g), shall not
exceed U.S.$15,000,000;
(i) the Guaranties; and
(j) customary indemnification obligations incurred in connection
with Acquisitions or asset dispositions permitted hereunder.
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11.9 Restrictions on Subsidiaries. DASI shall not permit any Subsidiary to
enter into any agreement or instrument (except the Trident Subordinated Debt
Indenture) 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.
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) for the Computation Period ending on such
day, to (b) the sum of Interest Expense (including, to the extent, if any,
excluded therefrom, distributions 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
prior to the 30
month anniversary of the
Effective Date 1.75:1
Any fiscal quarter ending
on or after the 30
month anniversary of the
Effective Date and prior
to the 42 month
anniversary of the
Effective Date 2.25:1
Any fiscal quarter ending
thereafter 2.50:1
11.11 Net Worth. DASI shall not permit the sum of its consolidated
stockholders equity (including the Trust Preferred Stock or, if issued, the
Trust Preferred Stock Debentures of DASI) as of the last day of any fiscal
quarter to be less than the sum of (i) U.S. $263,958,000 plus (ii) 50% of
cumulative positive Consolidated Net Income for each fiscal quarter ending after
December 31, 1998 to such day plus (iii) 75% of the Net Cash Proceeds of equity
securities of DASI issued on or after December 31, 1998 plus (iv) 90% of the
amount of equity issued by DASI in connection with the Excel Acquisition.
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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) 4.50:1 prior to the
earlier of (A) repayment in full of the Interim Term Loans and (B) the 18 month
anniversary of the Effective Date, (ii) 4.00:1 on and after the earlier of (A)
repayment in full of the Interim Term Loans and (B) the 18 month anniversary of
the Effective Date and prior to the 30 month anniversary of the Effective Date,
and (iii) 3.50:1 on and after the 30 month anniversary of the Effective Date.
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 4.75:1 prior to
the 30 month anniversary of the Effective Date or 4.25:1 on or after such
anniversary.
11.14 Restricted Payments. DASI and Dura shall not (i) declare or make any
dividend payment or other distribution of assets, properties, cash, rights,
obligations or securities on account of any shares of any class of its capital
stock, (ii) purchase, redeem or otherwise acquire for value, or permit any
Subsidiary to purchase or otherwise acquire for value, any shares of DASI's or
Dura's capital stock or any warrants, rights or options to acquire such shares,
now or hereafter outstanding, or (iii) make, or permit any Subsidiary to make,
any payment of principal of or interest on, or acquire, redeem or otherwise
retire, or make any other distribution in respect of, any of the Trust Preferred
Stock Debentures or the Trust Preferred Securities or Subordinated Indebtedness,
except that:
(a) DASI and Dura may declare and make dividend payments or other
distributions payable solely in its common stock, and the Trust Preferred Stock
Trust may make a distribution of DASI's common stock pursuant to the terms of
the Trust Preferred Securities or the Trust Preferred Stock Debentures;
(b) DASI and Dura may purchase, redeem or otherwise acquire shares
of its common stock or warrants or options to acquire any such shares with the
proceeds received from the substantially concurrent issue of new shares of its
common stock not otherwise required to be applied to a prepayment of Term Loans
under Section 2.8;
(c) so long as no Event of Default or Unmatured Event of Default
exists or would result therefrom, Dura may make dividends to DASI so that DASI
may make scheduled (as of the date of this Agreement) payments on and required
under the Trust Preferred Stock Debentures and permit the Trust Preferred Stock
Trust to make corresponding distributions on the Trust Preferred Securities;
(d) Dura may make dividends to DASI so that DASI may purchase or
otherwise acquire shares of its common stock in
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connection with its employee stock purchase or bonus plans in the ordinary
course of business and in a manner consistent with its past practice;
(e) so long as such payment is not blocked under the subordination
provisions of the Trident Subordinated Debt Indenture and no Event of Default
and Unmatured Event of Default exists or would result therefrom, Trident and the
Trident Subsidiaries may make payments on the Trident Subordinated Debt;
(f) Dura may (i) pay dividends to or on behalf of DASI under a tax
sharing arrangement reasonably acceptable to the Agent and disclosed to the
Lenders so long as such tax sharing arrangement is based on the method
prescribed in Treas. Reg. ss. 1.1502-33(d)(2)(ii) and on the method prescribed
in Treas. Reg. ss. 1.1552-1(a)(2) (and using 100% as the percentage described in
Treas. Reg. ss. 1.1502-33(d)(2)(ii) (b)), (ii) pay dividends to or on behalf of
DASI in the amount of DASI's franchise taxes and audit fees incurred in the
ordinary course of DASI's business, (iii) pay to DASI amounts necessary to pay
ordinary operating expenses incurred by DASI and (iv) pay dividends to or on
behalf of DASI to repurchase the capital stock of DASI owned by members of
management whose employment has been terminated so long as the aggregate amount
of such repurchases in any Fiscal Year does not exceed $1,000,000 and no Event
of Default then exists or would be caused thereby;
(g) so long as such payment is not blocked under the subordination
provisions of the agreement governing any Subordinated Indebtedness and no Event
of Default and Unmatured Event of Default exists or would result therefrom, DASI
or Dura may make (i) any interest payment on such Subordinated Indebtedness and
(ii) any other payment on such Subordinated Indebtedness from proceeds of equity
issued by DASI and not required to be applied otherwise under this Agreement;
and
(h) DASI may (i) purchase shares of the capital stock of DASI, and
(ii) declare or pay cash dividends to shareholders of DASI, in an aggregate
amount (in the case of both clauses (i) and (ii)) equal to 25% of net income of
DASI and its Subsidiaries arising after December 31, 1998 and computed on a
cumulative consolidated basis, provided that immediately after giving effect to
any such proposed action, no Unmatured Event of Default or Event of Default
would exist and the Total Debt to EBITDA Ratio (computed on a pro forma basis as
if such action had been taken as of the end of the most recently ended fiscal
quarter) would be less than or equal to 4.25 to 1.
11.15 ERISA. DASI shall not, and shall not permit any of its ERISA
Affiliates to, engage in a transaction that could be subject to Section 4069 or
4212(c) of ERISA.
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11.16 Change in Business. DASI shall not, and shall not permit any
Subsidiary to, engage in any business activity, except those currently conducted
by DASI and the Subsidiaries (including Trident and the Trident Subsidiaries),
the Adwest Group and the Excel Subsidiaries on the Effective Date and such other
activities that are reasonably related thereto or extensions thereof.
11.17 Accounting Changes. DASI shall not make any significant change in
accounting principles or reporting practices, except as required by GAAP, or
change its fiscal year.
11.18 Amendments to Other Documents. DASI shall not permit any material
amendment, waiver, consent, supplement or other modification with respect to any
Trident Acquisition Document, the Trident Subordinated Debt Indenture or any
Excel Acquisition Document without the prior written consent of the Required
Lenders (which shall not be unreasonably withheld).
11.19 Trust Preferred Stock Transaction. DASI shall not permit any
amendment to or modification of the Trust Preferred Stock Debentures, the Trust
Preferred Securities or the Trust Preferred Stock Indenture, which is adverse to
the interests of the Lenders.
ARTICLE XII
EVENTS OF DEFAULT
12.1 Event of Default. Any of the following shall constitute an "Event of
Default":
(a) Non-Payment. Any Loan Party fails to pay, (i) when and as
required to be paid herein, any principal of any Loan or of any L/C Obligation
or (ii) within five days after the same becomes due, any interest, fee or any
other amount payable hereunder or under any other Loan Document.
(b) Representation or Warranty. Any representation or warranty by
any Loan Party made or deemed made herein or in any other Loan Document, or
which is contained in any certificate, document or financial or other statement
by any Loan Party, any Subsidiary or any Responsible Officer furnished at any
time under this Agreement or under any other Loan Document, is incorrect in any
material respect on or as of the date made or deemed made.
(c) Specific Defaults. Any Loan Party fails to perform or observe
any term, covenant or agreement contained in Section 10.3(a), 10.16, 10.17 or
10.18 or in Article XI, and (except in the case of any failure under Section
10.3(a), 10.16, 10.17 or 10.18)
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such failure shall continue unremedied for a period of 10 Business Days after
the earlier of (i) the date upon which a Responsible Officer knew of such
failure or (ii) the date upon which written notice thereof is given to DASI by
any Agent or any Lender.
(d) Other Defaults. Any Loan Party fails to perform or observe any
other term or covenant contained in this Agreement or any other Loan Document,
and such failure shall continue unremedied for a period of 30 days after the
earlier of (i) the date upon which a Responsible Officer knew of such failure or
(ii) the date upon which written notice thereof is given to Dura by any Agent or
any Lender.
(e) Cross-Default. (i) Any Loan Party or any Subsidiary fails to
make any payment in respect of any Indebtedness (other than Indebtedness of any
Subsidiary to any other Subsidiary) or Contingent Obligation having an aggregate
principal Dollar Equivalent amount of more than U.S.$20,000,000 when due
(whether by scheduled maturity, required prepayment, acceleration, demand, or
otherwise); or (ii) any Loan Party or any Subsidiary fails to perform or observe
any other condition or covenant, or any other event shall occur or condition
exist, under any agreement or instrument relating to any such Indebtedness or
Contingent Obligation, if the effect of such failure, event or condition is to
cause, or to permit the holder or holders of such Indebtedness or beneficiary or
beneficiaries of such Indebtedness or Contingent Obligation (or a trustee or
agent on behalf of such holder or holders or beneficiary or beneficiaries) to
cause, such Indebtedness to be declared to be due and payable prior to its
stated maturity or such Contingent Obligation to become payable or cash
collateral in respect thereof to be demanded, provided that the aggregate amount
of all such Indebtedness or Contingent Obligations so affected and cash
collateral so required shall be in a Dollar Equivalent amount of U.S.$20,000,000
or more, and provided, further, that this subsection 12.1(e) shall not apply to
Indebtedness of Adwest or its Subsidiaries described in Section 10.18.
(f) Insolvency; Voluntary Proceedings. Any Loan Party or any
Material Subsidiary (i) ceases or fails to be solvent, or generally fails to
pay, or admits in writing its inability to pay, its debts as they become due;
(ii) voluntarily ceases to conduct its business in the ordinary course; (iii)
commences any Insolvency Proceeding with respect to itself; or (iv) takes any
action to effectuate or authorize any of the foregoing.
(g) Involuntary Proceedings. (i) Any involuntary Insolvency
Proceeding is commenced or filed against Loan Party or any Material Subsidiary,
or any writ, judgment, warrant of attachment, execution or similar process is
issued, enforced or levied against a substantial part of any Loan Party's or any
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Material Subsidiary's properties, and such proceeding or petition shall not be
dismissed, or such writ, judgment, warrant of attachment, execution or similar
process shall not be released, vacated or fully bonded, within 60 days after
commencement, filing or levy; (ii) any Loan Party or any Material Subsidiary
admits the material allegations of a petition against it in any Insolvency
Proceeding, or an order for relief (or similar order under non-U.S. law) is
ordered in any Insolvency Proceeding; or (iii) any Loan Party or any Material
Subsidiary acquiesces in the appointment of a receiver, receiver and manager,
administrative receiver, trustee, custodian, conservator, liquidator, mortgagee
in possession (or agent therefor), or other similar Person for itself or a
substantial portion of its property or business.
(h) ERISA. Any of the following events shall occur with respect to
any Pension Plan
(i) the institution of any steps by a Borrower, any ERISA
Affiliate or any other Person to terminate or withdraw from a Pension Plan or
similar foreign plan if, as a result of such termination or withdrawal, a
Borrower or any of its Subsidiaries would be required to make a contribution to
such Pension Plan, or would be liable to such Pension Plan or similar foreign
plan, in excess of U.S.$3,000,000; or
(ii) a contribution failure occurs with respect to any Pension
Plan or similar foreign plan sufficient to give rise to a Lien under Section
302(f) of ERISA, or any other Lien, and such failure continues for a period of
30 days (provided, that such contribution failure shall immediately constitute
an Event of Default as soon as such Lien arises).
(i) Monetary Judgments. One or more non-interlocutory judgments,
non-interlocutory orders, decrees or arbitration awards is entered against any
Loan Party or any Subsidiary involving in the aggregate a liability (to the
extent not covered by independent third-party insurance as to which the insurer
does not dispute coverage) as to any single or related series of transactions,
incidents or conditions, of a Dollar Equivalent amount of U.S.$20,000,000 or
more, and the same shall remain unvacated and unstayed pending appeal for a
period of 30 days after the entry thereof.
(j) Non-Monetary Judgments. Any non-monetary judgment, order or
decree is entered against DASI or any Subsidiary which does or would reasonably
be expected to have a Material Adverse Effect, and there shall be any period of
30 consecutive days during which a stay of enforcement of such judgment or
order, by reason of a pending appeal or otherwise, shall not be in effect.
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(k) Guaranties; Collateral Documents. Any Guaranty or Collateral
Document ceases to be in full force and effect (other than in accordance with
its terms or as permitted hereunder) or any Loan Party repudiates, or attempts
to repudiate, any of its obligations under any Guaranty or Collateral Document
which are material, or the grant of a Lien under any Collateral Document ceases
to be a first, perfected Lien on any of the collateral thereunder (subject only
to Permitted Liens), or any Loan Party fails to comply with or to perform any
material obligation or agreement under any Guaranty or Collateral Document
within ten days after request by the Agent or any Lender.
(l) Change in Control. Any Change in Control occurs.
12.2 Remedies. If any Event of Default occurs, the Agent shall, at the
request, or may, with the consent, of the Required Lenders,
(a) declare the Commitments, the obligation of the Australian Lender
to make Australian Loans, the obligation of the Canadian Lender to make Canadian
Loans, the obligation of the Issuing Lender to Issue Letters of Credit and the
obligation of the Swing Line Lender to make Swing Line Loans (other than the
obligations to make Refinancing Credit Extensions on the Adwest Closing Date and
to make Adwest Acquisition Loans) to be terminated, whereupon such commitments
and obligations shall be terminated;
(b) declare an amount equal to the maximum aggregate amount that is
or at any time thereafter may become available for drawing under any outstanding
Letters of Credit (whether or not any beneficiary shall have presented, or shall
be entitled at such time to present, the drafts or other documents required to
draw under such Letters of Credit) to be immediately due and payable, and
declare the unpaid principal amount of all outstanding Loans, all interest
accrued and unpaid thereon, and all other amounts owing or payable hereunder or
under any other Loan Document (other than, prior to the Adwest Acquisition
Commitment Expiry Date, the Adwest Acquisition Loans) to be immediately due and
payable, without presentment, demand, protest or other notice of any kind, all
of which are hereby expressly waived by the Borrowers; and
(c) exercise on behalf of the Agent and the Lenders all rights and
remedies available to the Agent and the Lenders under the Loan Documents or
applicable law;
provided, however, that upon the occurrence of any event specified in subsection
(f) or (g) of Section 12.1, the obligation of each Lender to make Loans and any
obligation of the Issuing Lender to Issue Letters of Credit shall automatically
terminate and the unpaid principal amount of all outstanding Loans and all
interest
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and other amounts as aforesaid shall automatically become due and payable
without further act of any Agent, the Issuing Lender or any other Lender.
Notwithstanding the foregoing, the obligation of each Lender to make any Adwest
Acquisition Loan in accordance with Sections 2.1 and 8.2 shall only terminate,
and the principal amount of the Adwest Acquisition Loans shall only become due
and payable, prior to the Adwest Acquisition Commitment Termination Date upon
the occurrence of the events referred to in Section 8.2(f).
12.3 Rights Not Exclusive. The rights provided for in this Agreement and
the other Loan Documents are cumulative and are not exclusive of any other
rights, powers, privileges or remedies provided by law or in equity, or under
any other instrument, document or agreement now existing or hereafter arising.
12.4 Adwest Acquisition Loans. Notwithstanding anything to the contrary
contained in this Agreement, subject only to Sections 8.1 and 8.2, during the
period prior to the Adwest Acquisition Commitment Termination Date, no Lender
shall be entitled to exercise any right which would allow it not to make any
Adwest Acquisition Loan to Dura and the New UK Borrower in accordance with
Section 2.1 of this Agreement.
ARTICLE XIII
THE AGENT
13.1 Appointment and Authorization. (a) Each Lender hereby irrevocably
(subject to Section 13.9) appoints, designates and authorizes the Agent to take
such action on its behalf under the provisions of this Agreement and each other
Loan Document and to exercise such powers and perform such duties as are
expressly delegated to it by the terms of this Agreement or any other Loan
Document, together with such powers as are reasonably incidental thereto.
Notwithstanding any provision to the contrary contained elsewhere in this
Agreement or in any other Loan Document, no Agent shall have any duties or
responsibilities, except those expressly set forth herein, nor shall the Agent
have or be deemed to have any fiduciary relationship with any Lender, and no
implied covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Agreement or any other Loan Document or
otherwise exist against the Agent. Without limiting the generality of the
foregoing sentence, the use of the term "agent" in this Agreement with reference
to the Agent is not intended to connote any fiduciary or other implied (or
express) obligations arising under agency doctrine of any applicable law.
Instead, such term is used merely as a matter of market custom, and is intended
to create or reflect only an administrative relationship between independent
contracting parties.
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(b) The Issuing Lender shall act on behalf of the Lenders with
respect to any Letters of Credit Issued by it and the documents associated
therewith until such time and except for so long as the Agent may agree at the
request of the Required Lenders to act for the Issuing Lender with respect
thereto; provided, however, that the Issuing Lender shall have all of the
benefits and immunities (i) provided to the Agent in this Article XIII with
respect to any acts taken or omissions suffered by the Issuing Lender in
connection with Letters of Credit Issued by it or proposed to be Issued by it
and the application and agreements for letters of credit pertaining to the
Letters of Credit as fully as if the term "Agent", as used in this Article XIII,
included the Issuing Lender with respect to such acts or omissions and (ii) as
additionally provided in this Agreement with respect to the Issuing Lender.
(c) The Swing Line Lender shall have all of the benefits and
immunities (i) provided to the Agent in this Article XIII with respect to any
acts taken or omissions suffered by the Swing Line Lender in connection with
Swing Line Loans made or proposed to be made by it as fully as if the term
"Agent", as used in this Article XIII, included the Swing Line Lender with
respect to such acts or omissions and (ii) as additionally provided in this
Agreement with respect to the Swing Line Lender.
13.2 Delegation of Duties. The Agent may execute any of its duties under
this Agreement or any other Loan Document by or through agents, employees or
attorneys-in-fact and shall be entitled to advice of counsel concerning all
matters pertaining to such duties. The Agent shall not be responsible for the
negligence or misconduct of any agent or attorney-in-fact that it selects with
reasonable care.
13.3 Liability of Agent. None of the Agent-Related Persons shall (i) be
liable for any action taken or omitted to be taken by any of them under or in
connection with this Agreement or any other Loan Document or the transactions
contemplated hereby (except for its own gross negligence or willful misconduct),
or (ii) be responsible in any manner to any of the Lenders for any recital,
statement, representation or warranty made by DASI or any Subsidiary or
Affiliate of DASI, or any officer thereof, contained in this Agreement or in any
other Loan Document, or in any certificate, report, statement or other document
referred to or provided for in, or received by the Agent under or in connection
with, this Agreement or any other Loan Document, or the validity, effectiveness,
genuineness, enforceability or sufficiency of this Agreement or any other Loan
Document, or for any failure of DASI or any other party to any Loan Document to
perform its obligations hereunder or thereunder. No Agent-Related Person shall
be under any obligation to any Lender to ascertain or to inquire as to the
observance or performance of any of the agreements contained in, or
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conditions of, this Agreement or any other Loan Document, or to inspect the
properties, books or records of DASI or any of DASI's Subsidiaries or
Affiliates.
13.4 Reliance by Agent.
(a) The Agent shall be entitled to rely, and shall be fully
protected in relying, upon any writing, resolution, notice, consent,
certificate, affidavit, letter, telegram, facsimile, telex or telephone message,
statement or other document or conversation believed by it to be genuine and
correct and to have been signed, sent or made by the proper Person or Persons,
and upon advice and statements of legal counsel (including counsel to DASI),
independent accountants and other experts selected by the Agent. The Agent shall
be fully justified in failing or refusing to take any action under this
Agreement or any other Loan Document unless it shall first receive such advice
or concurrence of the Required Lenders as it deems appropriate and, if it so
requests, it shall first be indemnified to its satisfaction by the Lenders
against any and all liability and expense which may be incurred by it by reason
of taking or continuing to take any such action. The Agent shall in all cases be
fully protected in acting, or in refraining from acting, under this Agreement or
any other Loan Document in accordance with a request or consent of the Required
Lenders, and such request and any action taken or failure to act pursuant
thereto shall be binding upon all of the Lenders.
(b) For purposes of determining compliance with the conditions
specified in Article VIII, each Lender that has executed this Agreement and
funded its initial Loans on any Closing Date shall be deemed to have consented
to, approved or accepted or to be satisfied with, each document or other matter
either sent by the Agent to such Lender for consent, approval, acceptance or
satisfaction, or required thereunder to be consented to or approved by or
acceptable or satisfactory to the Lender in respect of such Closing Date.
13.5 Notice of Default. The Agent shall not be deemed to have knowledge or
notice of the occurrence of any Event of Default or Unmatured Event of Default,
except with respect to defaults in the payment of principal, interest and fees
required to be paid to the Agent for the account of the Lenders, unless the
Agent shall have received written notice from a Lender or a Borrower referring
to this Agreement, describing such Event of Default or Unmatured Event of
Default and stating that such notice is a "notice of default". If the Agent
receives such a notice, the Agent will notify the Lenders of its receipt
thereof. The Agent shall take such action with respect to such Event of Default
or Unmatured Event of Default as may be requested by the Required Lenders in
accordance with Article XII; provided, however, that unless and until the Agent
has received any such request, the Agent may (but
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shall not be obligated to) take such action, or refrain from taking such action,
with respect to such Event of Default or Unmatured Event of Default as it shall
deem advisable or in the best interest of the Lenders.
13.6 Credit Decision. Each Lender acknowledges that none of the
Agent-Related Persons has made any representation or warranty to it, and that no
act by the Agent hereafter taken, including any review of the affairs of DASI
and its Subsidiaries, shall be deemed to constitute any representation or
warranty by any Agent-Related Person to any Lender. Each Lender represents to
the Agent that it has, independently and without reliance upon any Agent-Related
Person and based on such documents and information as it has deemed appropriate,
made its own appraisal of and investigation into the business, prospects,
operations, property, financial and other condition and creditworthiness of DASI
and its Subsidiaries, and all applicable bank regulatory laws relating to the
transactions contemplated hereby, and made its own decision to enter into this
Agreement and to extend credit to the Borrowers hereunder. Each Lender also
represents that it will, independently and without reliance upon any
Agent-Related Person and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit analysis,
appraisals and decisions in taking or not taking action under this Agreement and
the other Loan Documents, and to make such investigations as it deems necessary
to inform itself as to the business, prospects, operations, property, financial
and other condition and creditworthiness of the Borrowers. Except for notices,
reports and other documents expressly herein required to be furnished to the
Lenders by the Agent, the Agent shall have no duty or responsibility to provide
any Lender with any credit or other information concerning the business,
prospects, operations, property, financial and other condition or
creditworthiness of the Borrowers which may come into the possession of any of
the Agent-Related Persons.
13.7 Indemnification of Agent. Whether or not the transactions
contemplated hereby are consummated, the Lenders shall indemnify upon demand the
Agent-Related Persons (to the extent not reimbursed by or on behalf of the
Borrowers and without limiting the obligation of the Borrowers to do so), pro
rata (determined on the same basis used in determining Required Lenders), from
and against any and all Indemnified Liabilities; provided, however, that no
Lender shall be liable for the payment to any Agent-Related Person of any
portion of the Indemnified Liabilities to the extent resulting from such
Person's gross negligence or willful misconduct. Without limitation of the
foregoing, each Lender shall reimburse the Agent upon demand for its ratable
share (determined on the same basis used in determining Required Lenders) of any
costs or out-of-pocket expenses (including Attorney Costs) incurred by the Agent
in connection with the preparation, execution, delivery, administration,
modification, amendment or enforcement
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(whether through negotiations, legal proceedings or otherwise) of, or legal
advice in respect of rights or responsibilities under, this Agreement, any other
Loan Document, or any document contemplated by or referred to herein, to the
extent that the Agent is not reimbursed for such expenses by or on behalf of the
Borrowers. The undertakings in this Section shall survive the payment of all
Obligations hereunder and the resignation or replacement of the Agent.
13.8 Agent in Individual Capacity. Bank of America and its Affiliates
(including BA Australia Limited and BACAN) may make loans to, issue letters of
credit for the account of, accept deposits from, acquire equity interests in and
generally engage in any kind of banking, trust, financial advisory, underwriting
or other business with DASI and its Subsidiaries and Affiliates as though, in
the case of Bank of America, Bank of America were not the Agent, the Swing Line
Lender and the Issuing Lender, BA Australia Limited were not the Australian
Lender and BACAN were not the Canadian Lender, in each case without notice to or
consent of the Lenders. The Lenders acknowledge that, pursuant to such
activities, Bank of America or its Affiliates may receive information regarding
DASI or its Affiliates (including information that may be subject to
confidentiality obligations in favor of DASI or such Subsidiary) and acknowledge
that Bank of America and its Affiliates shall be under no obligation to provide
such information to them. With respect to its Loans, Bank of America (and any of
its respective Affiliates which may become a Lender) shall have the same rights
and powers under this Agreement as any other Lender and may exercise the same as
though it were not the Agent, the Issuing Lender or the Swing Line Lender, BA
Australia Limited were not the Australian Lender and BACAN were not the Canadian
Lender.
13.9 Successor Agent. The Agent may, and at the request of the Required
Lenders shall, resign as the Agent upon 30 days' notice to the Lenders. If the
Agent resigns under this Agreement, the Required Lenders shall appoint from
among the Lenders a successor Agent, which successor agent shall, so long as no
Event of Default exists, be subject to the approval of DASI (which approval
shall not be unreasonably withheld or delayed). If no successor agent is
appointed prior to the effective date of the resignation of the Agent, the Agent
may appoint, after consulting with the Lenders and DASI, a successor Agent, as
applicable, from among the Lenders. Upon the acceptance of its appointment as
successor agent hereunder, such successor agent shall succeed to all the rights,
powers and duties of the applicable retiring Agent and the term "Agent" shall
mean such successor agent and the retiring Agent's appointment, powers and
duties as Agent shall be terminated. After any retiring Agent's resignation
hereunder as Agent, the provisions of this Article XIII and Sections 14.4 and
14.5 shall inure to its benefit as to any actions taken or omitted to be taken
by it while it was the Agent under this Agreement. If
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no successor agent has accepted appointment as the Agent by the date which is 30
days following a retiring Agent's notice of resignation, such retiring Agent's
resignation shall nevertheless thereupon become effective and the Lenders shall
perform all of the duties of the Agent hereunder until such time, if any, as the
Required Lenders appoint a successor agent as provided for above.
Notwithstanding the foregoing, however, Bank of America may not be removed as
the Agent at the request of the Required Lenders unless Bank of America or any
Affiliate of Bank of America (including BA Australia Limited and BACAN) shall
also simultaneously be replaced as "Australian Lender", "Canadian Lender" and as
"Issuing Lender" and as "Swing Line Lender" hereunder pursuant to documentation
in form and substance reasonably satisfactory to Bank of America and, if
applicable, such Affiliates.
13.10 Withholding Tax.
(a) If any Lender, other than the Australian Lender and the Canadian
Lender, claims exemption from, or reduction of, withholding tax under a United
States tax treaty by providing IRS Form 1001 pursuant to subsection 7.1(f) and
such Lender sells, assigns, grants a participation in, or otherwise transfers
all or part of the Obligations of any Borrower to such Lender, such Lender
agrees to notify the Agent of the percentage amount in which it is no longer the
beneficial owner of Obligations of such Borrower to such Lender. To the extent
of such percentage amount, the Agent will treat such Lender's IRS Form 1001 as
no longer valid, and such Lender agrees to undertake sole responsibility for
complying with the withholding tax requirements imposed by Sections 1441 and
1442 of the Code.
(b) If any Lender, other than the Australian Lender and the Canadian
Lender, claiming exemption from United States withholding tax by filing IRS Form
4224 with the Agent pursuant to subsection 7.1(f) sells, assigns, grants a
participation in, or otherwise transfers all or part of the Obligations of any
Borrower to such Lender, such Lender agrees to undertake sole responsibility for
complying with the withholding tax requirements imposed by Sections 1441 and
1442 of the Code.
(c) If any Lender is entitled to a reduction in the applicable
withholding tax, the Agent may withhold from any interest payment to such Lender
an amount equivalent to the applicable withholding tax after taking into account
such reduction. If the forms or other documentation required by subsection
7.1(f) are not delivered to the Agent, then the Agent may withhold from any
interest payment to such Lender not providing such forms or other documentation
an amount equivalent to the applicable withholding tax.
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13.11 Collateral Matters.
(a) The Agent is authorized on behalf of all the Lenders, without
the necessity of any notice to or further consent from the Lenders, from time to
time to take any action with respect to any Collateral or the Collateral
Documents which may be necessary to perfect and maintain a perfected security
interest in and Liens upon the Collateral granted pursuant to the Loan
Documents.
(b) The Lenders irrevocably authorize the Agent, at its option and
in its discretion, to release any Lien granted to or held by the Agent upon any
Collateral (i) upon termination of the Commitments and payment in full of all
Loans and all other Obligations payable under this Agreement and under any other
Loan Document; (ii) constituting property sold or to be sold or disposed of as
part of or in connection with any disposition permitted hereunder; (iii)
constituting property in which a Loan Party owned no interest at the time the
Lien was granted or at any time thereafter; (iv) constituting property leased to
a Loan Party under a lease which has expired or been terminated in a transaction
permitted under this Agreement or is about to expire and which has not been, and
is not intended by such Loan Party to be, renewed or extended; (v) consisting of
an instrument evidencing Indebtedness or other debt instrument, if the
indebtedness evidenced thereby has been paid in full; (vi) constituting property
subject to a capital lease or purchase money security interest permitted under
subsection 11.1(i) or (j); or (vii) if approved, authorized or ratified in
writing by the Required Lenders or all the Lenders, as the case may be, as
provided in Section 14.1(e). Upon request by the Agent at any time, the Lenders
will confirm in writing the Agent's authority to release particular types or
items of Collateral pursuant to this Section 13.11(b).
(c) Each Lender agrees with and in favor of each other (which
agreement shall not be for the benefit of the Borrowers or any other Loan Party)
that any Borrower's obligation to such Lender under this Agreement and the other
Loan Documents is not and shall not be secured by any real property collateral
now or hereafter acquired by such Borrower or any of its Subsidiaries other than
the real property described in the Mortgages.
13.12 Co-Agents. No Lender identified on Schedule 14.2 as a "Co-Agent"
shall have any right, power, obligation, liability, responsibility or duty under
this Agreement other than those applicable to all Lenders as such. Without
limiting the foregoing, no Lender so identified as a "Co-Agent" shall have or be
deemed to have any fiduciary relationship with any Lender. Each Lender
acknowledges that it has not relied, and will not rely, on any Lender so
identified in deciding to enter into this Agreement or in taking or not taking
action hereunder.
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ARTICLE XIV
MISCELLANEOUS
14.1 Amendments and Waivers. No amendment or waiver of any provision of
this Agreement or any other Loan Document, and no consent with respect to any
departure by any Loan Party therefrom, shall be effective unless the same shall
be in writing and signed by the Required Lenders (or by the Agent at the written
request of the Required Lenders) and the applicable Loan Parties and
acknowledged by the Agent, and then any such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given; provided, however, that no such waiver, amendment, or consent shall,
unless in writing and signed by all the Lenders and acknowledged by the Agent,
do any of the following:
(a) increase or extend the Commitment of any Lender (or reinstate
any Commitment terminated pursuant to Section 12.2);
(b) postpone or delay any date fixed by this Agreement or any other
Loan Document for any payment of principal, interest, fees or other amounts due
to the Lenders (or any of them) hereunder or under any other Loan Document (it
being understood and agreed, however, that (i) any modification of the
application of prepayments required pursuant to Section 2.8 (or any other
similar provision of any Loan Document) shall only require the vote of the
Required Lenders and the vote in each Facility affected by such modification of
the holders of more than 50% of the Term Loans in such Facility, and (ii) a vote
to rescind any acceleration made pursuant to Section 12.2 of amounts owing with
respect to the Loans and other Obligations shall only require the vote of the
Required Lenders);
(c) reduce the principal of, or the rate of interest specified
herein on, any Loan or (subject to clause (vi) below) any fees or other amounts
payable hereunder or under any other Loan Document;
(d) change the percentage of the Commitments or of the aggregate
unpaid principal amount of the Loans and L/C Obligations which is required for
the Lenders or any of them to take any action hereunder;
(e) release any Collateral or the Guaranties of any Guarantors with,
in the case of any such Collateral or Guarantors, as the case may be, an
aggregate fair market value in excess of U.S.$10,000,000 in any one transaction
or series of related
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transactions (other than with respect to releases of collateral in connection
with dispositions permitted pursuant to Section 11.2 for which no consent is
required), or permit any disposition of assets having a value in excess of the
amount of asset dispositions permitted pursuant to Section 11.2 in any one
transaction or series of related transactions; or
(f) amend this Section, or Section 2.15, or any provision herein
providing for consent or other action by all Lenders;
and provided, further, that (i) no amendment, waiver or consent shall, unless in
writing and signed by the Issuing Lender in addition to the Required Lenders or
all Lenders, as the case may be, affect the rights or duties of the Issuing
Lender under this Agreement or any L/C-Related Document, (ii) no amendment,
waiver or consent shall, unless in writing and signed by the Swing Line Lender
in addition to the Required Lenders or all Lenders, as the case may be, affect
the rights or duties of the Swing Line Lender under this Agreement, or any other
Loan Documents, (iii) no amendment, waiver or consent shall, unless in writing
and signed by the Agent in addition to the Required Lenders or all Lenders, as
the case may be, affect the rights or duties of the Agent under this Agreement
or any other Loan Document, (iv) no amendment, waiver or consent shall, unless
in writing and signed by the Australian Lender in addition to the Required
Lenders or all Lenders, as the case may be, affect the rights or duties of the
Australian Lender under this Agreement or any other Loan Document, (v) no
amendment, waiver or consent shall, unless in writing and signed by the Canadian
Lender in addition to the Required Lenders or all Lenders, as the case may be,
affect the rights or duties of the Canadian Lender under this Agreement or any
other Loan Document, and (vi) the Fee Letter may be amended, or rights or
privileges thereunder waived, in a writing executed by the parties thereto.
14.2 Notices.
(a) All notices, requests and other communications hereunder shall
be in writing (including, unless the context expressly otherwise provides, by
facsimile transmission, provided that any matter transmitted by any Borrower to
the Agent by facsimile shall be immediately confirmed by a telephone call to the
recipient at the number specified on Schedule 14.2) and mailed, faxed or
delivered to the applicable party at the address or facsimile number specified
for notices on Schedule 14.2; or, as directed to any Borrower or the Agent, to
such other address as shall be designated by such party in a written notice to
the other parties, and as directed to any other party, at such other address as
shall be designated by such party in a written notice to DASI and the Agent.
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(b) All such notices, requests and communications shall be
effective, (i) if transmitted by overnight delivery or faxed, when delivered or
transmitted in legible form by facsimile machine, respectively, (ii) if mailed,
upon the third Business Day after the date deposited into the U.S. mail, or
(iii) if delivered, upon delivery; except that notices pursuant to Article II,
III, IV, V, VI, VII or XII to the Agent shall not be effective until actually
received by the Agent, and notices pursuant to Article VI to the Issuing Lender
shall not be effective until actually received by the Issuing Lender.
(c) Any agreement of the Agent and the Lenders herein to receive
certain notices by telephone or facsimile is solely for the convenience and at
the request of the Borrowers. The Agent and the Lenders shall be entitled to
rely on the authority of any Person purporting to be a Person authorized by the
applicable Borrower to give such notice, and the Agent and the Lenders shall not
have any liability to such Borrower or any other Person on account of any action
taken or not taken by the Agent or any Lender in reliance upon such telephonic
or facsimile notice. The obligation of the Borrowers to repay the Loans and L/C
Obligations shall not be affected in any way or to any extent by any failure by
the Agent or any Lender to receive written confirmation of any telephonic or
facsimile notice or the receipt by the Agent or any Lender of a confirmation
which is at variance with the terms understood by the Agent or such Lender to be
contained in the telephonic or facsimile notice.
(d) All notices sent to the Australian Lender, the Canadian Lender
or the Swing Line Lender also shall be sent simultaneously to the Agent.
14.3 No Waiver; Cumulative Remedies. No failure to exercise and no delay
in exercising, on the part of the Agent or any Lender, any right, remedy, power
or privilege hereunder, shall operate as a waiver thereof; nor shall any single
or partial exercise of any right, remedy, power or privilege hereunder preclude
any other or further exercise thereof or the exercise of any other right,
remedy, power or privilege.
14.4 Costs and Expenses. DASI shall:
(a) whether or not the transactions contemplated hereby are
consummated, pay or reimburse the Arranger, Bank of America (in its capacity as
Agent, Issuing Lender and Swing Line Lender), BA Australia Limited (in its
capacity as Australian Lender), and BACAN (in its capacity as Canadian Lender)
within five Business Days after demand (subject to subsections 8.2(i) and
8.3(f)) for all reasonable costs and expenses incurred by the Arranger, Bank of
America (in its capacity as Agent, Issuing Lender and Swing Line Lender), BA
Australia Limited (in its capacity as Australian
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Lender) and BACAN (in its capacity as Canadian Lender) in connection with the
development, preparation, syndication, delivery, administration and execution
of, and any amendment, supplement, waiver or modification to (in each case,
whether or not consummated), this Agreement, any other Loan Document and any
other document prepared in connection herewith or therewith, and the
consummation of the transactions contemplated hereby and thereby, including
reasonable Attorney Costs incurred by the Arrangers, Bank of America (in its
capacity as Agent, Issuing Lender and Swing Line Lender), BA Australia Limited
(in its capacity as Australian Lender) and BACAN (in its capacity as Canadian
Lender) with respect thereto;
(b) pay or reimburse the Agent, the Arranger and each Lender within
five Business Days after demand (subject to subsection 7.5(a)) for all
reasonable costs and expenses (including Attorney Costs) incurred by them in
connection with the enforcement, attempted enforcement or preservation of any
right or remedy under this Agreement or any other Loan Document during the
existence of an Event of Default or after acceleration of the Loans (including
in connection with any "workout" or restructuring regarding the Loans, and
including in any Insolvency Proceeding or appellate proceeding); and
(c) pay, and save the Agent, the Arranger and each Lender harmless
from all liability for, any stamp or other taxes (including financial
institutions duly and debits tax on credits and debits to bank and other
accounts in Australia) which may be payable in connection with the execution and
delivery of this Agreement or any other Loan Document, the borrowings hereunder
or any payments made to or from any account in Australia pursuant hereto.
14.5 Borrower Indemnification.
(a) Whether or not the transactions contemplated hereby are
consummated, DASI and the Dura Borrowers shall indemnify, defend and hold the
Agent-Related Persons and each Lender and each of their respective officers,
directors, trustees, employees, counsel, agents and attorneys-in-fact (each, an
"Indemnified Person") harmless from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
charges, expenses and disbursements (including Attorney Costs but excluding
taxes on the overall net income (including franchise taxes based on net income)
of such Indemnified Person) of any kind or nature whatsoever which may at any
time (including at any time following repayment of the Loans, the termination of
the Letters of Credit and the termination, resignation or replacement of the
Agent or replacement of any Lender) be imposed on, incurred by or asserted
against any such Person in any way relating to or arising out of this Agreement
or any document contemplated by or
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referred to herein, or the transactions contemplated hereby or thereby, or any
action taken or omitted by any such Person under or in connection with any of
the foregoing, including with respect to any pending or threatened
investigation, litigation or proceeding (including any Insolvency Proceeding or
appellate proceeding) related to or arising out of this Agreement or the Loans
or Letters of Credit or the use of the proceeds thereof, or related to any
Offshore Currency transactions entered into in connection herewith, whether or
not any Indemnified Person is a party thereto (all the foregoing, collectively,
the "Indemnified Liabilities"); provided that no Borrower shall have any
obligation hereunder to any Indemnified Person with respect to Indemnified
Liabilities to the extent resulting from the gross negligence or willful
misconduct of such Indemnified Person. The agreements in this Section shall
survive payment of all other Obligations.
(b) Whether or not the transactions contemplated hereby are
consummated, the Trident Borrowers shall indemnify, defend and hold the
Indemnified Persons harmless from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
charges, expenses and disbursements (including Attorney Costs but excluding
taxes on the overall net income (including franchise taxes based on net income)
of such Indemnified Person) of any kind or nature whatsoever which may at any
time (including at any time following repayment of the Loans, the termination of
the Letters of Credit and the termination, resignation or replacement of the
Agent or replacement of any Lender) be imposed on, incurred by or asserted
against any such Person in any way relating to or arising out of this Agreement
or any document contemplated by or referred to herein, or the transactions
contemplated hereby or thereby, or any action taken or omitted by any such
Person under or in connection with any of the foregoing, including with respect
to any pending or threatened investigation, litigation or proceeding (including
any Insolvency Proceeding or appellate proceeding) related to or arising out of
this Agreement or the Loans or Letters of Credit or the use of the proceeds
thereof, or related to any Offshore Currency transactions entered into in
connection herewith, whether or not any Indemnified Person is a party thereto,
but in each case only if and to the extent related to a Trident Borrower or
Trident Obligations (all the foregoing, collectively, the "Trident Indemnified
Liabilities"); provided that no Trident Borrower shall have any obligation
hereunder to any Indemnified Person with respect to Trident Indemnified
Liabilities to the extent resulting from the gross negligence or willful
misconduct of such Indemnified Person. The agreements in this Section shall
survive payment of all other Obligations.
14.6 Payments Set Aside. To the extent that any Borrower makes a payment
to the Agent or any Lender, or the Agent or any Lender exercises its right of
set-off, and such payment or the
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proceeds of such set-off or any part thereof is subsequently invalidated,
declared to be fraudulent or preferential, set aside or required (including
pursuant to any settlement entered into by the Agent or such Lender in its
discretion) to be repaid to a trustee, receiver or any other party, in
connection with any Insolvency Proceeding or otherwise, then (a) to the extent
of such recovery the obligation or part thereof originally intended to be
satisfied shall be revived and continued in full force and effect as if such
payment had not been made or such set-off had not occurred and (b) each Lender
severally agrees to pay to the Agent upon demand its pro rata share of any
amount so recovered from or repaid by the Agent.
14.7 Successors and Assigns. The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns, except that the Borrowers may not assign or transfer any
of their respective rights or obligations under this Agreement without the prior
written consent of the Agent and each Lender.
14.8 Assignments, Participations, etc.
(a) Any Lender may, with the written consent of DASI and the Agent,
which consents of DASI and the Agent shall not be unreasonably withheld or
delayed, at any time assign and delegate to one or more Eligible Assignees
(provided that no written consent of DASI shall be required if an Event of
Default then exists and is continuing, and no written consent of DASI or the
Agent shall be required in connection with any assignment and delegation by a
Lender to an Eligible Assignee that is an Affiliate of such Lender, to a Related
Fund of any Lender or to another Lender (so long as such assignment will not
result in any increased costs to the Borrowers)) (each an "Assignee") all or any
ratable part of all of the Loans, the Commitments, the L/C Obligations and the
other rights and obligations of such Lender hereunder, in a minimum Dollar
Equivalent amount of U.S.$5,000,000 (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), or, if less, the entire amount of all Loans, the
Commitments, L/C Obligations and other rights and obligations of such Lender
hereunder; provided, however, that (i) the Borrowers and the Agent may continue
to deal solely and directly with such Lender in connection with the interest so
assigned to an Assignee until (x) written notice of such assignment, together
with payment instructions, addresses and related information with respect to the
Assignee, shall have been given to the Borrowers and the Agent by such Lender
and the Assignee; (y) such Lender and its Assignee shall have delivered to the
Borrowers and the Agent an Assignment and Acceptance in the form of Exhibit H
("Assignment and Acceptance") together with any Note or Notes subject to such
assignment and (z) the assignor Lender or Assignee shall have paid
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to the Agent a processing fee in the amount of U.S.$3,500; and (ii) no Lender
which is (or is the primary Lender with respect to) an Australian Lender may
assign all of its rights and obligations hereunder unless arrangements
satisfactory to the Borrowers and the Agent have been made for one or more
Lenders to act (or to cause their respective Affiliates to act) as Australian
Lender hereunder in the full amount of the Australian Dura Commitment and (iii)
no Lender which is (or is the primary Lender with respect to) a Canadian Lender
may assign all of its rights and obligations hereunder unless arrangements
satisfactory to the Borrowers and the Agent have been made for one or more
Lenders to act (or to cause their respective Affiliates to act) as Canadian
Lender hereunder in the full amount of the Canadian Commitment.
(b) From and after the date that the Agent notifies the assignor
Lender that it has received (and provided its consent and, to the extent
required, received the consent of DASI, with respect to) an executed Assignment
and Acceptance and payment of the above-referenced processing fee, (i) the
Assignee thereunder shall be a party hereto and, to the extent that rights
hereunder have been assigned to it and obligations hereunder have been assumed
by it pursuant to such Assignment and Acceptance, shall have the rights and
obligations of a Lender under the Loan Documents, and (ii) the assignor Lender
shall, to the extent that rights and obligations hereunder and under the other
Loan Documents have been assigned by it pursuant to such Assignment and
Acceptance, relinquish its rights and be released from its obligations under the
Loan Documents.
(c) Within five (5) Business Days after the Agent notifies DASI that
it has received (and provided its consent and, to the extent required, received
the consent of DASI, with respect to)an executed Assignment and Acceptance and
payment of the above-referenced processing fee, the applicable Borrowers shall
execute and deliver to the Agent new Notes evidencing such Assignee's assigned
Loans and Commitments and, if the assignor Lender has retained a portion of its
Loans and its Commitments, replacement Notes in the principal amount of the
Loans and Commitments retained by the assignor Lender (such Notes to be in
exchange for, but not in payment of, the Notes held by such assignor Lender).
DASI designates the Agent as its agent for maintaining a book entry record of
ownership identifying the Lenders, their respective addresses and the amount of
the respective Loans and Notes which they own. The foregoing provisions are
intended to comply with the registration requirements in Treasury Regulation
Section 5f.103-1 so that the Loans and Notes are considered to be in "registered
form" pursuant to such regulation. The entries in such book entry record shall
be conclusive and binding, absent manifest error, regarding ownership of the
Loans and Notes.
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(d) Any Lender may at any time sell to one or more commercial banks
or other Persons not Affiliates of DASI (a "Participant") participating
interests in any Loan, the Commitment of such Lender and the other interests of
such Lender (the "originating Lender") hereunder and under the other Loan
Documents; provided, however, that (i) the originating Lender's obligations
under this Agreement shall remain unchanged, (ii) the originating Lender shall
remain solely responsible for the performance of such obligations, (iii) the
Borrowers, the Issuing Lender, the Swing Line Lender and the Agent shall
continue to deal solely and directly with the originating Lender in connection
with the originating Lender's rights and obligations under this Agreement and
the other Loan Documents, and (iv) no Lender shall transfer or grant any
participating interest under which the Participant has rights to approve any
amendment to, or any consent or waiver with respect to, this Agreement or any
other Loan Document, except to the extent such amendment, consent or waiver
would require unanimous consent of the Lenders as described in the first proviso
to Section 14.1. In the case of any such participation, the Participant shall be
entitled to the benefit of Sections 7.1, 7.3, 7.4, 7.6 and 14.5 as though it
were also a Lender hereunder (provided that no Borrower shall be obligated to
pay any amount under Section 7.1, 7.3, 7.4 or 7.6 to any Participant which is
greater than such Borrower would have been required to pay to the originating
Lender if no such participation had been sold), and if amounts outstanding under
this Agreement are due and unpaid, or shall have been declared or shall have
become due and payable upon the occurrence of an Event of Default, the
Participant shall be deemed to have the right of set-off in respect of its
participating interest in amounts owing under this Agreement to the same extent
as if the amount of its participating interest were owing directly to it as a
Lender under this Agreement. Each Lender that sells a participation will
maintain a book entry record of ownership identifying each of its Participants
and the amount of the participation owned by each such Participant. Such book
entry record of ownership shall be maintained by the Lender as agent for DASI
and the Agent. This provision is intended to comply with the registration
requirements in Treasury Regulation Section 5f.103-1 so that the Loans and Notes
are considered to be in "registered form" pursuant to such regulation. The
entries in such book entry record shall be conclusive and binding, absent
manifest error, regarding ownership of such participations.
(e) Notwithstanding any other provision in this Agreement, (i) any
Lender may at any time create a security interest in, or pledge, all or any
portion of its rights under and interest in this Agreement and any Note held by
it in favor of any Federal Reserve Bank in accordance with Regulation A of the
FRB or U.S. Treasury Regulation 31 CFR ss.203.14, and such Federal Reserve Bank
may enforce such pledge or security interest in any manner permitted under
applicable law and (ii) any Lender that is a fund
161
that invests in bank loans may, without the consent of DASI or the Agent, assign
or pledge all or any portion of its rights under and interest in this Agreement
and any Note held by it to any holders of obligations owed, or securities
issued, by such fund as security for such obligations or securities, or to any
trustee for, or any other representative of, such holders; provided that any
foreclosure or similar action by such holders, trustee or representative shall
be subject to the provisions of this Section concerning assignments.
14.9 Confidentiality. Each Lender agrees to take and to cause its
Affiliates to take normal and reasonable precautions and exercise due care to
maintain the confidentiality of all information provided to it by DASI or any
Subsidiary, or by the Agent on DASI's or any Subsidiary's behalf, under this
Agreement or any other Loan Document, and neither it nor any of its Affiliates
shall use any such information other than in connection with or in enforcement
of this Agreement and the other Loan Documents; except to the extent such
information (i) was or becomes generally available to the public other than as a
result of disclosure by such Lender, or (ii) was or becomes available on a
non-confidential basis from a source other than DASI or any Subsidiary, provided
that such source is not bound by a confidentiality agreement with DASI or any
Subsidiary known to the Lender; provided, however, that any Lender may disclose
such information (A) at the request or pursuant to any requirement of any
Governmental Authority (including the National Association of Insurance
Commissioners) to which the Lender is subject or in connection with an
examination of such Lender by any such authority or at the request of any rating
agency rating obligations of or interests in such Lender; (B) pursuant to
subpoena or other court process; (C) when required to do so in accordance with
the provisions of any applicable Requirement of Law; (D) to the extent
reasonably required in connection with any litigation or proceeding to which the
Agent, any Lender or their respective Affiliates may be party; (E) to the extent
reasonably required in connection with the exercise of any remedy hereunder or
under any other Loan Document; (F) to such Lender's independent auditors and
other professional advisors; and (G) to its Affiliates; provided, that with
respect to disclosures required by clauses (B), (C) or (D) above, Agent and any
Lender will give prior notice to the applicable Borrower of any such required
disclosure, unless such notice is prohibited by the terms of such required
disclosure, as determined by Agent or such Lender. Notwithstanding the
foregoing, each Borrower authorizes each Lender to disclose to any bona fide
Participant or Assignee (each, a "Transferee") and to any prospective
Transferee, such financial and other information in such Lender's possession
concerning such Borrower or its Subsidiaries which has been delivered to Agent
or the Lenders pursuant to this Agreement or which has been delivered to the
Agent or the Lenders by such Borrower in connection with the Lenders'
162
credit evaluation of such Borrower prior to entering into this Agreement;
provided, that, unless otherwise agreed by such Borrower, such Transferee agrees
in writing to such Lender to keep such information confidential to the same
extent required of the Lenders hereunder.
14.10 Set-off. In addition to any right or remedy of the Lenders provided
by law, if any amount is due and payable to any Lender hereunder, such Lender is
authorized at any time and from time to time, without prior notice to any
Borrower, any such notice being waived by each Borrower to the fullest extent
permitted by law, to set off and apply any and all deposits (general or special,
time or demand, provisional or final) at any time held by, and other
indebtedness at any time owing by, such Lender to or for the credit or the
account of such Borrower against such amount, irrespective of whether or not the
Agent or such Lender shall have made demand under this Agreement or any Loan
Document. Each Lender agrees promptly to notify the applicable Borrower and the
Agent after any such set-off and application made by such Lender; provided that
the failure to give such notice shall not affect the validity of such set-off
and application.
14.11 Automatic Debits of Fees. With respect to any facility fee,
arrangement fee, letter of credit fee or other fee due and payable to the Agent,
the Issuing Lender, the Swing Line Lender or the Arranger under the Loan
Documents, each Borrower hereby irrevocably authorizes Bank of America, BA
Australia Limited and BACAN to debit any deposit account of such Borrower with
Bank of America, BA Australia Limited or BACAN in an amount such that the
aggregate amount debited from all such deposit accounts does not exceed such
fee. If there are insufficient funds in such deposit accounts to cover the
amount of the fee then due, such debits will be reversed (in whole or in part,
in Bank of America's, BA Australia Limited's or BACAN's, as applicable, sole
discretion) and such amount not debited shall be deemed to be unpaid. No such
debit under this Section shall be deemed a set-off.
14.12 Notification of Addresses, Lending Offices, etc. Each Lender shall
notify the Agent in writing of any change in the address to which notices to
such Lender should be directed, of addresses of any Lending Office, of payment
instructions in respect of all payments to be made to it hereunder and of such
other administrative information as the Agent shall reasonably request.
14.13 Counterparts. This Agreement may be executed in any number of
separate counterparts, each of which, when so executed, shall be deemed an
original, and all of which taken together shall be deemed to constitute but one
and the same instrument.
14.14 Severability. The illegality or unenforceability of any provision of
this Agreement or any instrument or agreement
163
required hereunder shall not in any way affect or impair the legality or
enforceability of the remaining provisions of this Agreement or such instrument
or agreement.
14.15 No Third Parties Benefited. This Agreement is made and entered into
for the sole protection and legal benefit of the Borrowers, the Lenders, the
Agent and the Agent-Related Persons, and their permitted successors and assigns,
and no other Person shall be a direct or indirect legal beneficiary of, or have
any direct or indirect cause of action or claim in connection with, this
Agreement or any other Loan Document.
14.16 Governing Law and Jurisdiction.
(a) THIS AGREEMENT AND ANY NOTES SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF ILLINOIS; PROVIDED THAT THE AGENT
AND THE LENDERS SHALL RETAIN ALL RIGHTS ARISING UNDER FEDERAL LAW.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR
ANY OTHER LOAN DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF ILLINOIS OR
OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF ILLINOIS, AND BY EXECUTION AND
DELIVERY OF THIS AGREEMENT (OR, IN THE CASE OF ANY SUBSIDIARY, BY EXECUTION AND
DELIVERY OF ANY L/C-RELATED DOCUMENT), EACH BORROWER, THE AGENT AND EACH LENDER
(AND ANY SUBSIDIARY WHICH IS A JOINT APPLICANT ON ANY LETTER OF CREDIT)
CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE NON-EXCLUSIVE
JURISDICTION OF THOSE COURTS. EACH BORROWER, THE AGENT AND EACH LENDER (AND ANY
SUBSIDIARY WHICH IS A JOINT APPLICANT ON ANY LETTER OF CREDIT) IRREVOCABLY
WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON
THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE
BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF THIS
AGREEMENT OR ANY DOCUMENT RELATED HERETO. EACH BORROWER, THE AGENT AND EACH
LENDER (AND ANY SUBSIDIARY WHICH IS A JOINT APPLICANT ON ANY LETTER OF CREDIT)
WAIVES PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER PROCESS, WHICH MAY BE
MADE BY ANY OTHER MEANS PERMITTED BY ILLINOIS LAW.
(c) TO THE EXTENT THAT ANY BORROWER HAS OR HEREAFTER MAY ACQUIRE ANY
IMMUNITY FROM JURISDICTION OF ANY COURT OR FROM ANY LEGAL PROCESS (WHETHER
THROUGH SERVICE OR NOTICE, ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT IN AID OF
EXECUTION OR OTHERWISE) WITH RESPECT TO ITSELF OR ITS PROPERTY, SUCH BORROWER
HEREBY IRREVOCABLY WAIVES SUCH IMMUNITY IN RESPECT OF ITS OBLIGATIONS UNDER THIS
AGREEMENT AND THE OTHER LOAN DOCUMENTS.
14.17 Waiver of Jury Trial. EACH BORROWER, THE AGENT AND EACH LENDER (AND
ANY SUBSIDIARY WHICH IS A JOINT APPLICANT ON ANY LETTER OF CREDIT) WAIVES ITS
RIGHT TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING
OUT OF OR RELATED TO THIS
164
AGREEMENT, THE OTHER LOAN DOCUMENTS, OR THE TRANSACTIONS CONTEMPLATED HEREBY OR
THEREBY IN ANY ACTION, PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY ANY
OF THE PARTIES AGAINST ANY OTHER PARTY OR ANY AGENT-RELATED PERSON, PARTICIPANT
OR ASSIGNEE, WHETHER WITH RESPECT TO CONTRACT CLAIMS, TORT CLAIMS, OR OTHERWISE.
EACH BORROWER, THE AGENT AND EACH LENDER (AND ANY SUBSIDIARY WHICH IS A JOINT
APPLICANT ON ANY LETTER OF CREDIT) AGREES THAT ANY SUCH CLAIM OR CAUSE OF ACTION
SHALL BE TRIED BY A COURT TRIAL WITHOUT A JURY. WITHOUT LIMITING THE FOREGOING,
ALL OF SUCH PARTIES FURTHER AGREE THAT THEIR RESPECTIVE RIGHTS TO A TRIAL BY
JURY ARE WAIVED BY OPERATION OF THIS SECTION AS TO ANY ACTION, COUNTERCLAIM OR
OTHER PROCEEDING WHICH SEEKS, IN WHOLE OR IN PART, TO CHALLENGE THE VALIDITY OR
ENFORCEABILITY OF THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS OR ANY PROVISION
HEREOF OR THEREOF. THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENT, RENEWAL,
SUPPLEMENT OR MODIFICATION TO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS.
14.18 Judgment. If, for the purposes of obtaining judgment in any court,
it is necessary to convert a sum due hereunder or any other Loan Document in one
currency into another currency, the rate of exchange used shall be that at which
in accordance with normal banking procedures the Agent could purchase the first
currency with such other currency on the Business Day preceding that on which
final judgment is given. The obligation of each Borrower in respect of any such
sum due from it to the Agent hereunder or under any other Loan Document shall,
notwithstanding any judgment in a currency (the "Judgment Currency") other than
that in which such sum is denominated in accordance with the applicable
provisions of this Agreement (the "Agreement Currency"), be discharged only to
the extent that on the Business Day following receipt by the Agent of any sum
adjudged to be so due in the Judgment Currency, the Agent may in accordance with
normal banking procedures purchase the Agreement Currency with the Judgment
Currency. If the amount of the Agreement Currency so purchased is less than the
sum originally due to the Agent in the Agreement Currency, the applicable
Borrower agrees, as a separate obligation and notwithstanding any such judgment,
to indemnify the Agent or the Person to whom such obligation was owing against
such loss. If the amount of the Agreement Currency so purchased is greater than
the sum originally due to the Agent in such currency, the Agent agrees to return
the amount of any excess to the applicable Borrower (or to any other Person who
may be entitled thereto under applicable law).
14.19 Entire Agreement. This Agreement, together with the other Loan
Documents, embodies the entire agreement and understanding among the Borrowers,
the Lenders and the Agent, and supersedes all prior or contemporaneous
agreements and understandings of such Persons, verbal or written, relating to
the subject matter hereof and thereof.
165
14.20 Amendment and Restatement. The Loan Parties party to the Existing
Credit Agreement and the Loan Documents thereunder, the Lenders and the Agent
agree that, effective as of the initial Closing Date, this Agreement amends and
restates in its entirety the Existing Credit Agreement and this Agreement shall
not be deemed to be a novation of the Obligations (as defined in the Existing
Credit Agreement) or any other obligations of any Loan Party under the other
Loan Documents (as defined in the Existing Credit Agreement). On the initial
Closing Date, the commitments of the Lenders shall be reallocated in accordance
with the terms hereof. To facilitate such reallocation, at the initial Closing
Date, (i) all loans and letters of credit outstanding under the Existing Credit
Agreement shall be deemed to be Loans and Letters of Credit hereunder, (ii) each
Lender shall purchase from the other Lenders such portions of outstanding Group
Loans and participations under the Existing Credit Agreement of the other
Lenders so that each Lender holds such Lender's Pro Rata Share in all
outstanding Group Loans and participations under the Existing Credit Agreement,
(iii) the Agent shall apply funds received from such Lenders as their initial
Credit Extensions under this Agreement to the purchase of such interests from
initial, and (iv) the Borrowers shall select new Interest Periods to apply to
all Group Loans hereunder (or, to the extent the Borrowers fail to do so, such
Loans shall become Floating Rate Loans).
14.21 Additional Borrowers. DASI may from time to time request in a
writing to the Agent and the Lenders that an additional Subsidiary be added as
an additional Dura Borrower or Trident Borrower. If the Agent and the Lenders
consent in writing to such Subsidiary becoming an additional Dura Borrower or
(if a Trident Subsidiary) an additional Trident Borrower (which consent may be
given or withheld in the Agent's and each Lender's discretion, the absence of
any response by the Agent or any Lender being deemed a rejection of such
request), such Subsidiary may become an additional Dura Borrower or Trident
Borrower, as the case may be, by executing and delivering to the Agent a Joinder
Agreement and by delivering supporting documentation (including certified
organizational documents, authorization, incumbency and opinion(s) of counsel)
of the type and substantially in the forms delivered by the existing Borrowers
on the Effective Date and all in form and substance satisfactory to the Agent
and the Lenders. The Agent and the Lenders hereby consent to the addition of
Adwest, Adwest France S.A. and Adwest Heidemann Gruppe GmbH & Co. KG as
Borrowers on or within 60 days following the Adwest Closing Date in accordance
with this Section (without any requirement that the Lenders execute any Joinder
Agreement by which such Subsidiaries become additional Borrowers under the
Credit Agreement).
14.22 Limitation. Notwithstanding any other terms of this Agreement or any
other Loan Document, (a) no Loan Party that is organized under the laws of a
jurisdiction outside the United
166
States of America (a "Foreign Loan Party") shall be obligated in respect of any
Obligations of any Loan Party that is organized under the laws of a jurisdiction
within the United States of America (a "U.S. Loan Party") unless such U.S. Loan
Party is an entity which is neither (i) a "United States shareholder" (as
defined in Section 951(b) of the Code) of such Foreign Loan Party nor (ii) a
corporation, 25% or more of the total combined voting power of which is owned
(directly, indirectly or constructively) by one or more United States
shareholders of such Foreign Loan Party in the aggregate, and (b) any Foreign
Loan Party shall only be obligated in respect of any other Loan Party's
Obligations to the fullest extent permitted by the applicable law of the
jurisdiction in which such Foreign Loan Party is organized (including financial
assistance limitations).
14.23 Post-Closing Matters. Notwithstanding the provisions of Sections 8.1
and 10.14, the Loan Parties need not complete the actions or deliver the
documents described in Part B of Schedule 9.9 until the dates specified therein.
14.24 Deed. For purposes of the laws of Australia or any of its States or
Territories, this Agreement is a deed and the Dura Australian Borrower executes
this Agreement as a deed.
167
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed and delivered by their proper and duly authorized officers as of the
day and year first above written.
PARENT GUARANTOR: DURA AUTOMOTIVE SYSTEMS, INC.
By: /s/ David Huls
-----------------------------------
Name: David Huls
Title: Vice President
DURA BORROWERS: DURA OPERATING CORP.
By: /s/ David Huls
-----------------------------------
Name: David Huls
Title: Vice President
DURA AUTOMOTIVE SYSTEMS EUROPE GMBH
By: /s/ David Bovee
-----------------------------------
Name: David Bovee
Title: Managing Director
SIGNED, SEALED and )
DELIVERED by )
David J. Huls, as )
Attorney for )
DURA ASIA-PACIFIC )
PTY LIMITED )
ACN 004 884 539 )
pursuant to a Power )
of Attorney dated )
March 19, 1999 )
in the presence of: )
/s/ Carl E. Nelson
-------------------- --------------
Signature of Witness
Carl E. Nelson
-----------------------------------
Name of Witness
DURA AUTOMOTIVE SYSTEMS (CANADA),
LTD.
By: /s/ David Huls
-----------------------------------
Name: David Huls
Title: Vice President and Assistant
Secretary
TRIDENT BORROWERS: TRIDENT AUTOMOTIVE PLC
By: /s/ David Huls
-----------------------------------
Name: David Huls
Title: Attorney-in-fact
DURA AUTOMOTIVE SYSTEMS LIMITED
By: /s/ David Huls
-----------------------------------
Name: David Huls
Title: Attorney-in-fact
SPICEBRIGHT LIMITED
By: /s/ David Huls
-----------------------------------
Name: David Huls
Title: Attorney-in-fact
DURA AUTOMOTIVE SYSTEMS CABLE
OPERATIONS INC.
By: /s/ David Huls
-----------------------------------
Name: David Huls
Title: Vice President
MOBLAN INVESTMENTS B.V.
By: /s/ David Huls
-----------------------------------
Name: David Huls
Title: Managing Director
DURA AUTOMOTIVE SYSTEMS CABLE
OPERATIONS CANADA, INC.
By: /s/ David Huls
-----------------------------------
Name: David Huls
Title: Vice President
NEW UK BORROWER: DURA AUTOMOTIVE ACQUISITION LIMITED
By: /s/ David Huls
-----------------------------------
Name: David Huls
Title: Attorney-in-fact
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as Agent
By: /s/ Christine Cordi
-----------------------------------
Name: Christine Cordi
Title: Vice President
BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION, as Issuing Lender, as Swing
Line Lender and as Lender
By: /s/ Lynn Stetson
-----------------------------------
Name: Lynn Stetson
Title: Managing Director
BA AUSTRALIA LIMITED, as Australian
Lender
By: /s/ Lynn Stetson
-----------------------------------
Name: Lynn Stetson
Title: Attorney-in-fact
BANK OF AMERICA CANADA,
as Canadian Lender
By: /s/ Lynn Stetson
-----------------------------------
Name: Lynn Stetson
Title: Attorney-in-fact
BANKS
ABN AMRO BANK N.V.
By: /s/ John M. Ellenwood
-----------------------------------
Name: John M. Ellenwood
Title: Group Vice President
By: /s/ Douglas R. Elliott
-----------------------------------
Name: Douglas R. Elliott
Title: Group Vice President
BANKBOSTON, N.A.
By: /s/ Demetric A. Duckett
-----------------------------------
Name: Demetric A. Duckett
Title: Vice President
THE BANK OF NEW YORK
By: /s/ Richard A. Raffetto
-----------------------------------
Name: Richard A. Raffetto
Title: Vice President
THE BANK OF NOVA SCOTIA
By: /s/ F.C.H. Ashby
-----------------------------------
Name: F.C.H. Ashby
Title: Manager Loan Operations
BANK OF TOKYO-MITSUBISHI TRUST
COMPANY
By: /s/ Paul P. Malecki
-----------------------------------
Name: Paul P. Malecki
Title: Vice President
BANQUE NATIONALE DE PARIS
By: /s/ Jo Ellen Bender
-----------------------------------
Name: Jo Ellen Bender
Title: Senior Vice President
BARCLAYS BANK PLC
By: /s/ Marlene Wichtelocett
-----------------------------------
Name: Marlene Wichtelocett
Title: Vice President
BAYERISCHE HYPO-UND
VEREINSBANK AG, NEW YORK
BRANCH
By: /s/ Hans Dick
-----------------------------------
Name: Hans Dick
Title: Director
By: /s/ Steven Simons
-----------------------------------
Name: Steven Simons
Title: Associate Director
BHF-BANK AKTIENGESELLSCHAFT
By: /s/ Anthony Heyman
-----------------------------------
Name: Anthony Heyman
Title: Assistant Vice President
By: /s/ Peter Leibman
-----------------------------------
Name: Peter Leibman
Title: A.T.
BW CAPITAL MARKETS, INC.
By: /s/ Thomas A. Lowe
-----------------------------------
Name: Thomas A. Lowe
Title: Vice President
THE CHASE MANHATTAN BANK
By: /s/ Andrew G. Kalning
-----------------------------------
Name: Andrew G. Kalning
Title: Vice President
COMERICA BANK
By: /s/ Daryl R. Krause
-----------------------------------
Name: Daryl R. Krause
Title: Vice President
CREDIT AGRICOLE INDOSUEZ
By: /s/ Katherine L. Abbott
-----------------------------------
Name: Katherine L. Abbott
Title: First Vice President
By: /s/ W. Leroy Startz
-----------------------------------
Name: W. Leroy Startz
Title: First Vice President
DRESDNER BANK AG NEW YORK AND
GRAND CAYMAN BRANCHES
By: /s/ John W. Sweeney
-----------------------------------
Name: John W. Sweeney
Title: Assistant Vice President
By: /s/ Christopher E. Sarisky
-----------------------------------
Name: Christopher E. Sarisky
Title: Assistant Vice President
FIRST UNION NATIONAL BANK
By: /s/ Kent Davis
-----------------------------------
Name: Kent Davis
Title: Vice President
FLEET NATIONAL BANK
By: /s/ Jim Janis
-----------------------------------
Name: Jim Janis
Title: Vice President
IKB DEUTSCHE INDUSTRIEBANK AG,
Luxembourg Branch
By: /s/ Edwin Brecht
-----------------------------------
Name: Edwin Brecht
Title: Executive Director
By: /s/ Manfred Ziwey
-----------------------------------
Name: Manfred Ziwey
Title: Director
KBC BANK N.V.
By: /s/ John E. Thierfelder
-----------------------------------
Name: John E. Thierfelder
Title: Vice President
By: /s/ Robert Snauffer
-----------------------------------
Name: Robert Snauffer
Title: First Vice President
KEYBANK NATIONAL ASSOCIATION
By: /s/ J.T. Taylor
-----------------------------------
Name: J.T. Taylor
Title: Vice President
MICHIGAN NATIONAL BANK
By: /s/ Annette M. Gordon
-----------------------------------
Name: Annette M. Gordon
Title: Relationship Manager
NATIONAL CITY BANK
By: /s/ Matthew R. Klinger
-----------------------------------
Name: Matthew R. Klinger
Title: Assistant Vice President
NBD BANK
By: /s/ Glenn A. Currin
-----------------------------------
Name: Glenn A. Currin
Title: Vice President
U.S. BANK NATIONAL ASSOCIATION
By: /s/ Robert A. Rosati
-----------------------------------
Name: Robert A. Rosati
Title: Assistant Vice President
US TRUST
By: /s/ Eastman, D.G.
-----------------------------------
Name: Eastman, D.G.
Title: Vice President
WEBSTER BANK
By: /s/ Barbara E. Hillmeyer
-----------------------------------
Name: Barbara E. Hillmeyer
Title: Vice President
FUNDS
ALLSTATE INSURANCE COMPANY
By: /s/ Jerry D. Zinkula
-----------------------------------
Name: Jerry D. Zinkula
Title:
By: /s/ Patricia W. Wilson
-----------------------------------
Name: Patricia W. Wilson
Title:
Its Authorized Signatories
ALLSTATE LIFE INSURANCE
COMPANY
By: /s/ Jerry D. Zinkula
-----------------------------------
Name: Jerry D. Zinkula
Title:
ALLSTATE LIFE INSURANCE
COMPANY
By: /s/ Patricia W. Wilson
-----------------------------------
Name: Patricia W. Wilson
Title:
Its Authorized Signatories
OSPREY INVESTMENTS PORTFOLIO
By: Citibank, N.A., as Manager
By: /s/ Hans I. Christensen
-----------------------------------
Name: Hans I. Christensen
Title: Vice President
CYPRESSTREE INVESTMENT FUND,
LLC
By: Cypress Tree Investment
Management Company, Inc., its
Managing Member
By: /s/ Timothy M. Barns
-----------------------------------
Name: Timothy M. Barns
Title: Managing Director
NORTH AMERICAN SENIOR FLOATING
RATE FUND
By: CypressTree Investment
Management Company, Inc., as
Portfolio Manager
By: /s/ Timothy M. Barns
-----------------------------------
Name: Timothy M. Barns
Title: Managing Director
CYPRESSTREE INSTITUTIONAL
FUND, LLC
By: CypressTree Investment
Management Company, Inc., its
Managing Member
By: /s/ Timothy M. Barns
-----------------------------------
Name: Timothy M. Barns
Title: Managing Director
CYPRESSTREE SENIOR FLOATING
RATE FUND
By: CypressTree Investment
Management Company, Inc., as
Portfolio Manager
By: /s/ Timothy M. Barns
-----------------------------------
Name: Timothy M. Barns
Title: Managing Director
FRANKLIN FLOATING RATE TRUST
By: /s/ Chauncey Lufkin
-----------------------------------
Name: Chauncey Lufkin
Title: Vice President
FREMONT INVESTMENT & LOAN
By: /s/ Kannika Viravan
-----------------------------------
Name: Kannika Viravan
Title: Assistant Vice President
GENERAL ELECTRIC CAPITAL
CORPORATION
By: /s/ William S. Richardson
-----------------------------------
Name: William S. Richardson
Title: Duly Authorized Signatory
THE TORONTO-DOMINION (TEXAS),
INC.
By: /s/ Debbie A. Greene
-----------------------------------
Name: Debbie A. Greene
Title: Vice President
FLOATING RATE PORTFOLIO
By: INVESCO Senior Secured
Management, Inc., as attorney
in fact
By: /s/ Joseph Rotondo
-----------------------------------
Name: Joseph Rotondo
Title: Authorized Signatory
Corporate Spacial
Situation Fund
Morgan Guaranty Trust Company
of New York as Trustee for a
COMMINGLED PENSION TRUST FUND
By: /s/ David T. Ellis
-----------------------------------
Name: David T. Ellis
Title: Vice President
MGT High Yield Bond Fund
Morgan Guaranty Trust Company
of New York as Trustee for a
COMMINGLED PENSION TRUST FUND
By: /s/ David T. Ellis
-----------------------------------
Name: David T. Ellis
Title: Vice President
MASSACHUSETTS MUTUAL LIFE
INSURANCE COMPANY
By: /s/ Thomas Id
-----------------------------------
Name: Thomas Id
Title: Managing Director
MERRILL LYNCH SENIOR FLOATING
RATE FUND, INC.
By: /s/ Paul Travers
-----------------------------------
Name: Paul Travers
Title: Authorized Signatory
MORGAN STANLEY DEAN WITTER
PRIME INCOME TRUST
By: /s/ Peter Gewirtz
-----------------------------------
Name: Peter Gewirtz
Title: Authorized Signatory
NATIONSBANK, N.A.
By: /s/ Edward Harmon
-----------------------------------
Name: Edward Harmon
Title: AVP
OCTAGON LOAN TRUST
By: Octagon Credit Investors,
as Manager
By: /s/ Richard W. Stewart
-----------------------------------
Name: Richard W. Stewart
Title: Managing Director
JACKSON NATIONAL LIFE
INSURANCE COMPANY
By: PPM America, Inc., as
attorney in fact, on behalf of
Jackson National Life
Insurance Company
By: /s/ Michael DiRe
-----------------------------------
Name: Michael DiRe
Title: Managing Director
PINEHURST TRADING, INC.
By: /s/ Kelly C. Walker
-----------------------------------
Name: Kelly C. Walker
Title: Vice President
SRF TRADING, INC.
By: /s/ Kelly C. Walker
-----------------------------------
Name: Kelly C. Walker
Title: Vice President
TYLER TRADING, INC.
By: /s/ David W. Nabors
-----------------------------------
Name: David W. Nabors
Title: Vice President
KZH APPALOOSA LLC
By: /s/ Scott Hignett
-----------------------------------
Name: Scott Hignett
Title: Authorized Agent
KZH CNC LLC
By: /s/ Scott Hignett
-----------------------------------
Name: Scott Hignett
Title: Authorized Agent
KZH CYPRESSTREE-1 LLC
By: /s/ Ronnie Murray
-----------------------------------
Name: Ronnie Murray
Title: Authorized Agent
KZH RIVERSIDE LLC
By: /s/ Virginia Conway
-----------------------------------
Name: Virginia Conway
Title: Authorized Agent
KZH STERLING LLC
By: /s/ Bruce Petersel
-----------------------------------
Name: Bruce Petersel
Title: Authorized Agent
KZH WATERSIDE LLC
By: /s/ Virginia Conway
-----------------------------------
Name: Virginia Conway
Title: Authorized Agent
KZH SOLEIL LLC
By: /s/ Shari Goldstein
-----------------------------------
Name: Shari Goldstein
Title: Authorized Agent
KZH SOLEIL - 2 LLC
By: /s/ Jennifer Smedley
-----------------------------------
Name: Jennifer Smedley
Title: Authorized Agent
UNITED OF OMAHA LIFE INSURANCE
COMPANY
By: TCW Asset Management
Company, its Investment
Advisor
By: /s/ Mark L. Gold
-----------------------------------
Name: Mark L. Gold
Title: Managing Director
By: /s/ Jonathan R. Insull
-----------------------------------
Name: Jonathan R. Insull
Title: Vice President
KZH CRESCENT LLC
By: /s/ Dennis Kildea
-----------------------------------
Name: Dennis Kildea
Title: Authorized Agent
KZH CRESCENT - 2 LLC
By: /s/ Dennis Kildea
-----------------------------------
Name: Dennis Kildea
Title: Authorized Agent
KZH CRESCENT - 3 LLC
By: /s/ Dennis Kildea
-----------------------------------
Name: Dennis Kildea
Title: Authorized Agent
TRANSAMERICA LIFE INSURANCE
AND ANNUITY COMPANY
By: /s/ John M. Casparian
-----------------------------------
Name: John M. Casparian
Title: Investment Officer
THE TRAVELERS INSURANCE
COMPANY
By: /s/ John W. Petchler
-----------------------------------
Name: John W. Petchler
Title: Second Vice President
TRAVELERS CORPORATE LOAN FUND
INC.
By: Travelers Asset Management
International Corporation
By: /s/ John W. Petchler
-----------------------------------
Name: John W. Petchler
Title: Second Vice President
VAN KAMPEN PRIME RATE INCOME
TRUST
By: /s/ Jeffrey W. Mallet
-----------------------------------
Name: Jeffrey W. Mallet
Title: Senior Vice President &
Director
Capitalized terms used herein and not otherwise defined shall have the
meaning assigned to them in the Amended and Restated Credit Agreement, dated as
of March 19, 1999, among Dura Automotive Systems, Inc., Dura Operating Corp.,
Dura Automotive Systems Europe GmbH, Dura Asia-Pacific Pty Limited, Dura
Automotive Systems (Canada), Ltd., Trident Automotive plc, Dura Automotive
Systems Limited, Spicebright Limited, Dura Automotive Systems Cable Operations
Inc., Dura Automotive Systems Cable Operations Canada, Inc., Moblan Investments
B.V., and Dura Automotive Acquisition Limited. If and to the extent any
information required to be furnished in any part of these schedules is so
furnished, such information shall be deemed to be included in each other part of
these schedules in which the information is also required to be included. The
inclusion of any information in these schedules shall not be deemed to be an
admission or acknowledgment by DASI or any of the Subsidiaries of DASI that such
information is material to or outside the ordinary course of the business of
DASI's Subsidiaries or that any representation or warranty included in the
Amended and Restated Credit Agreement would be inaccurate in any respect of such
information not included herein. For simplicity sake, the schedules contain
information with respect to DASI and its Subsidiaries as if the Effective Date,
the Excel Closing Date and the Adwest Closing Date had occurred simultaneously.
Any information contained in the schedules regarding the Excel Subsidiaries
shall not be deemed effective until the Excel Closing Date and any information
regarding Adwest and its Subsidiaries shall not be deemed effective until the
Adwest Closing Date notwithstanding the inclusion of such information in such
manner.
SCHEDULE 1.1
PRICING SCHEDULE
The Applicable Margin, the Commitment Fee Rate, the LC Fee Rate, the U.S.
Base Rate Margin and the Other Floating Rate Margin shall be determined based on
the applicable Senior Leverage Ratio as set forth below. | |
L/C Fee U.S. Other
Senior Rate - Base Floating
Leverage Applicable Commitment Letters of Rate Rate
Ratio Margin Fee Rate Credit Margin Margin
----- ------ -------- ------ ------ ------
Less than 1.500% 0.375% 1.500% zero 2.000%
2.25 to 1
Equal to or 1.750% 0.500% 1.750% 0.250% 2.250%
greater than
2.25 to 1 but
less than
2.75 to 1
Equal to or 2.000% 0.500% 2.000% 0.500% 2.500%
greater than
2.75 to 1 but
less than
3.25 to 1
Equal to or 2.250% 0.500% 2.250% 0.750% 2.750%
greater than
3.25 to 1
| |
The Applicable Margin initially shall be 2.250%, the Commitment Fee Rate
initially shall be 0.50%, the L/C Fee Rate for Letters of Credit initially shall
be 2.250%, the U.S. Base Rate Margin initially shall be 0.750% and the Other
Floating Rate Margin initially shall be 2.750%. Each of the foregoing shall be
adjusted, to the extent applicable, 45 days (or, in the case of the last Fiscal
Quarter of any Fiscal Year, 90 days) after the end of each Fiscal Quarter
beginning with the Fiscal Quarter ending June 30, 1999 based on the Senior
Leverage Ratio as of the last day of such Fiscal Quarter; provided that if DASI
fails to deliver the financial statements required by Section 10.1 by the due
date therefor, the Applicable Margin, the Commitment Fee Rate, the L/C Fee Rate,
the U.S. Base Rate Margin and the Other Floating Rate Margin that would apply if
the Senior Leverage Ratio were greater
1.1-1
than or equal to 3.25 to 1 shall apply from such due date until such financial
statements are delivered.
1.1-2
SCHEDULE 2.1(d)
TOTAL REVOLVING OUTSTANDINGS LIMITS PER BORROWER
Total Borrower
Borrower Revolving Outstandings Limit
- -------- ----------------------------
Dura Operating Corp. U.S.$400,000,000
Dura Automotive U.S.$50,000,000
Systems (Europe) GmbH
Trident Automotive U.S.$55,000,000
Dura Automotive Systems U.S.$55,000,000
Limited
Spicebright Limited U.S.$55,000,000
Dura Automotive Systems U.S.$55,000,000
Cable Operations Inc.
Moblan Investments B.V. U.S.$55,000,000
Dura Automotive Acquisition U.S.$55,000,000
Limited
Adwest Automotive U.S.$400,000,000
Adwest France S.A. U.S.$400,000,000
Adwest Heidemann Gruppe
GmbH & Co. KG U.S.$400,000,000
SCHEDULE 2.9
Principal Amount
to be Repaid
------------
Payment Date
- ------------ Tranche A Tranche B
Term Loans Term Loans
---------- ----------
6/30/1999 0.00% 0.00%
9/30/1999 0.00% 0.00%
12/31/1999 0.00% 0.00%
3/31/2000 0.00% 0.00%
6/30/2000 3.64% 0.25%
9/30/2000 3.64% 0.25%
12/31/2000 3.64% 0.25%
3/31/2001 3.64% 0.25%
6/30/2001 4.55% 0.25%
9/30/2001 4.55% 0.25%
12/31/2001 4.55% 0.25%
3/31/2002 4.55% 0.25%
6/30/2002 5.45% 0.25%
9/30/2002 5.45% 0.25%
12/31/2002 5.45% 0.25%
3/31/2003 5.45% 0.25%
6/30/2003 5.45% 0.25%
9/30/2003 5.45% 0.25%
12/31/2003 5.45% 0.25%
3/30/2004 5.45% 0.25%
6/30/2004 5.91% 0.25%
9/30/2004 5.91% 0.25%
12/31/2004 5.91% 0.25%
3/31/2005 5.91% 0.25%
6/30/2005 23.75%
9/30/2005 23.75%
12/31/2005 23.75%
3/31/2006 23.75%
TOTAL 100.00% 100.00%
SCHEDULE 7.6
ASSOCIATED COSTS RATE
1. For the purposes of this Agreement, the cost of compliance with existing
requirements of the Bank of England and/or the Financial Services Authority in
respect of Loans will be calculated by the Agent in relation to each relevant
Borrowing on the basis of rates supplied by the Agent (or such Lender as it may
from time to time determine) by reference to the circumstances existing on the
first day of each Interest Period in respect of such Borrowing and, if any such
Interest Period exceeds three months, at three calendar monthly intervals from
the first day of such Interest Period during its duration in accordance with the
following formula:
in relation to Loans denominated in Pounds Sterling
AB + C(B - D) + E x 0.01) = ___ per cent, per annum
100 - (A + C)
in relation to Loans denominated in any other currency
E x 0.01 per cent, per annum
--------
300
Where:
A is the percentage of eligible liabilities which the Agent (or such
Lender as it may determine) is from time to time required to
maintain as an interest free cash ratio deposit with the Bank of
England to comply with cash ratio requirements.
B is the percentage rate per annum at which British pound sterling
deposits are offered by the Agent (or such Lender as it may
determine), in accordance with its normal practice, for a period
equal to (i) the relevant Interest Period (or, as the case may be,
remainder of such Interest Period) in respect of the relevant
Borrowing or (ii) three months, whichever is the shorter, to a
leading bank in the London interbank market at or about 11:00 a.m.
in a sum approximately equal to the amount of such Borrowing.
C is the percentage of eligible liabilities which the Agent (or such
Lender as it may determine) is required from time to time to
maintain as interest bearing special deposits with the Bank of
England.
D is the percentage rate per annum payable by the Bank of England to
the Agent (or such Lender as it may determine) on interest bearing
special deposits.
E is the rate payable by the Agent (or such Lender as it may
determine) to the Financial Services Authority pursuant to the Fees
Regulations (but, for this purpose, ignoring any minimum fee
required pursuant to the Fees Regulations) and expressed in pounds
per (pound)1,000,000 of the Fee Base of the Agent (or such Lender as
it may determine).
2. For the purposes of this Schedule, (a) "eligible liabilities" and "special
deposits" shall have the meanings ascribed to them from time to time under or
pursuant to the Bank of England Act 1988 or (as may be appropriate) by the Bank
of England; (b) "Fee Regulations" means the Banking Supervision (Fees)
Regulations 1998 or such other regulation as may be in force from time to time
in respect of the payment of fees for banking supervision, and (c) "Fee Base"
shall have the meaning ascribed to it and shall be calculated in accordance with
the Fees Regulations.
3. The percentages used in A and C above shall be those required to be
maintained on the first day of the relevant period as determined in accordance
with B above.
4. In application of the above formula, A, B, C and D will be included in the
formula as figures and not as percentages (e.g., if A is 0.5 per cent, and B is
12 per cent, AB will be calculated as 0.5 x 12 and not as 0.5 per cent. x 12 per
cent).
5. Calculations will be made on the basis of a 365 day year (or, if market
practice differs, in accordance with market practice).
6. A negative result obtained by subtracting D from B shall be taken as zero.
7. The resulting figures shall be rounded upwards, if not already such a
multiple, to the nearest whole multiple of one-thirty-second of one per cent.
per annum.
8. Additional amounts calculated in accordance with this Schedule are payable on
each day on which interest is payable on the relevant Borrowing.
9. The determination of the Associated Costs Rate in relation to any period
shall, in the absence of manifest error, be conclusive and binding on all of the
parties hereto.
10. The Agent may from time to time, after consultation with Dura and the
Lenders, determine and notify to all the parties hereto any amendments or
variations which are required to be made to the formula set out above in order
to comply with any requirements from time to time imposed by the Bank of England
or the Financial Services Authority in relation to Loans (including any
requirements relating to sterling primary liquidity) and any such determination
shall, in the absence of manifest error, be conclusive and binding on all of the
parties hereto.
Schedule 7.6-2
SCHEDULE 8.2
ADWEST CLOSING DOCUMENTS
(a) Resolutions; Incumbencies.
(i) Copies of the resolutions of the board of directors (or
comparable body) of each Adwest Loan Party authorizing the execution,
delivery and performance by such Adwest Loan Party of the Loan Documents
to which such Adwest Loan Party is to be a party, certified as of the
Closing Date by the Secretary or an Assistant Secretary of such Adwest
Loan Party; and
(ii) A certificate of the Secretary or Assistant Secretary of each
Adwest Loan Party certifying the names and true signatures of the officers
of such Adwest Loan Party authorized to execute, deliver and perform the
Loan Documents to which such Adwest Loan Party is to be a party.
(b) Organization Documents. Each of the following documents: the
articles or certificate of incorporation or association the memorandum and
articles of association, and, if applicable, the bylaws (or other comparable
constitutive documents)of each Adwest Loan Party as in effect on the Closing
Date, certified by the Secretary or Assistant Secretary of such Adwest Loan
Party as of the Closing Date.
(c) Guaranties. A Guaranty by Dura UK Limited (formerly Dura
Automotive Systems (UK) Limited) including therein the guaranty of the New UK
Borrower's Obligations under the Loan Documents.
(d) Collateral Documents. The Deed of Charge and Memorandum of
Deposit executed by Dura UK Limited (formerly Dura Automotive Systems (UK)
Limited) in respect of the entire issued share capital of the New UK Borrower.
(e) Adwest Acquisition Documents. A certificate of a Responsible
Officer certifying as of the Closing Date true and complete copies of the Adwest
Acquisition Documents.
(f) Legal Opinions. An opinion of Kirkland & Ellis, U.S. counsel to
Loan Parties, substantially in the form provided in connection with the Existing
Credit Agreement, and an opinion of Slaughter and May, English counsel to the
Loan Parties, substantially in the form of the English legal opinions previously
provided in connection with the Existing Credit Agreement.
(g) Agent for Service of Process. Evidence satisfactory to the Agent
that the New UK Borrower and Dura UK Limited have appointed a Person in Chicago,
Illinois as its agent for service of process in the United States.
SCHEDULE 10.17
ADDITIONAL ADWEST CLOSING DOCUMENTS
(a) Resolutions; Incumbencies.
(i) To the extent not provided on or prior to the Adwest
Closing Date, copies of the resolutions of the board of directors (or comparable
body) of each member of the Adwest Group to be party to Loan Documents
authorizing the execution, delivery and performance by such Subsidiary of the
Loan Documents to which such Subsidiary is to be a party, certified as of the S.
155 Date by the Secretary or Assistant Secretary of such Subsidiary; and
(ii) a Certificate of the secretary or Assistant Secretary of
each such Subsidiary certifying the names and true signatures of the officers of
such Subsidiary authorized to execute, deliver and perform the Loan Documents to
which such Subsidiary is to be a party.
(b) Organization Documents; Good Standing. Each of the following
documents:
(i) the memorandum and articles of association, certificates
of incorporation and, if applicable, the bylaws (or other comparable
constitutive documents) of each such Subsidiary as in effect on the S. 155
Date, certified by the Secretary or Assistant Secretary of each such
Subsidiary as of the S. 155 Date.
(ii) in the case of each such Subsidiary, evidence of
organizational good standing or existence, as applicable.
(c) Legal Opinions. An opinion of Slaughter and May, English counsel
to the New UK Borrower and the other Loan Parties, substantially in the form of
the English legal opinions previously provided in connection with the Existing
Credit Agreement; an opinion of Australian counsel to the Loan Parties,
substantially in the form of the Australian legal opinions previously provided
in connection with the Existing Credit Agreement; an opinion of Canadian counsel
to the Loan Parties, substantially in the form of Canadian legal opinions
previously provided in connection with the Existing Credit Agreement; an opinion
of German counsel to the Loan Parties, substantially in the form of German legal
opinion previously provided in connection with the Existing Credit Agreement; an
opinion of Netherlands counsel to the Loan Parties, substantially in the form of
Dutch legal opinion previously provided in connection with the Existing Credit
Agreement; and an opinion of Kirkland and Ellis, U.S. counsel to Loan Parties,
substantially in the form provided in connection with the Existing Credit
Agreement.
(d) Agent for Service of Process. Evidence satisfactory to the Agent
that each such Subsidiary has appointed a Person in Chicago, Illinois as its
agent for service of process in the United States.
SCHEDULE 2.1
COMMITMENTS
================================================================================================================
Interim Term Tranche A Term Tranche B Term
Lender Commitment Commitment Commitment
------ ---------- ---------- ----------
- ----------------------------------------------------------------------------------------------------------------
Type of Facility U.S. $200,000,000.00 U.S. $275,000,000.00 U.S. $275,000,000.00
- ----------------------------------------------------------------------------------------------------------------
Agent/Lender:
1. Bank of America National
Trust and Savings Association 13,714,285.68 18,857,142.85 45,000,000.00
- ----------------------------------------------------------------------------------------------------------------
Co-Agents/Lenders:
2. The Bank of Nova Scotia 10,285,714.29 14,142,857.14 0
- ----------------------------------------------------------------------------------------------------------------
3. BHF-Bank Aktiengesellschaft 10,285,714.29 14,142,857.14 0
- ----------------------------------------------------------------------------------------------------------------
4. Banque Nationale de Paris 10,285,714.29 14,142,857.14 0
- ----------------------------------------------------------------------------------------------------------------
5. The Chase Manhattan Bank 10,285,714.29 14,142,857.14 0
- ----------------------------------------------------------------------------------------------------------------
6. Comerica Bank 10,285,714.29 14,142,857.14 0
- ----------------------------------------------------------------------------------------------------------------
7. Dresdner Bank AG 10,285,714.29 14,142,857.14 0
- ----------------------------------------------------------------------------------------------------------------
8. U.S. Bank National Association 10,285,714.29 14,142,857.14 0
- ----------------------------------------------------------------------------------------------------------------
9. NBD Bank 10,285,714.29 14,142,857.14 0
- ----------------------------------------------------------------------------------------------------------------
10 ABN AMRO Bank N.V. 10,285,714.29 14,142,857.14 0
- ----------------------------------------------------------------------------------------------------------------
11 Barclays Bank PLC 10,285,714.29 14,142,857.14 0
- ----------------------------------------------------------------------------------------------------------------
Lenders:
12. KeyBank National Association 8,000,000.00 11,000,000.00 0
- ----------------------------------------------------------------------------------------------------------------
13. BankBoston, N.A. 8,000,000.00 11,000,000.00 0
- ----------------------------------------------------------------------------------------------------------------
14. KBC Bank, N.V. 8,000,000.00 11,000,000.00 0
- ----------------------------------------------------------------------------------------------------------------
15. Fleet National Bank 8,000,000.00 11,000,000.00 0
- ----------------------------------------------------------------------------------------------------------------
16. First Union National Bank 8,000,000.00 11,000,000.00 0
- ----------------------------------------------------------------------------------------------------------------
17. The Bank of New York 4,571,428.57 6,285,714.29 0
- ----------------------------------------------------------------------------------------------------------------
18. BW Capital Markets, Inc. 4,571,428.57 6,285,714.29 0
- ----------------------------------------------------------------------------------------------------------------
19. Credit Agricole Indosuez 4,571,428.57 6,285,714.29 0
- ----------------------------------------------------------------------------------------------------------------
20. Bank of Tokyo-Mitsubishi Trust 4,571,428.57 6,285,714.29 0
Company
- ----------------------------------------------------------------------------------------------------------------
21. IKB Deutsche Industriebank AG 4,571,428.57 6,285,714.29 0
- ----------------------------------------------------------------------------------------------------------------
22. US Trust 4,571,428.57 6,285,714.29 0
- ----------------------------------------------------------------------------------------------------------------
======================================================================================
Revolving
Lender Commitment Total
------ ---------- -----
- --------------------------------------------------------------------------------------
Type of Facility U.S. $400,000,000.00 U.S.
$1,150,000,000.00
- --------------------------------------------------------------------------------------
Agent/Lender:
1. Bank of America National
Trust and Savings Association 27,428,571.47 105,000,000.00
- --------------------------------------------------------------------------------------
Co-Agents/Lenders:
2. The Bank of Nova Scotia 20,571,428.57 45,000,000.00
- --------------------------------------------------------------------------------------
3. BHF-Bank Aktiengesellschaft 20,571,428.57 45,000,000.00
- --------------------------------------------------------------------------------------
4. Banque Nationale de Paris 20,571,428.57 45,000,000.00
- --------------------------------------------------------------------------------------
5. The Chase Manhattan Bank 20,571,428.57 45,000,000.00
- --------------------------------------------------------------------------------------
6. Comerica Bank 20,571,428.57 45,000,000.00
- --------------------------------------------------------------------------------------
7. Dresdner Bank AG 20,571,428.57 45,000,000.00
- --------------------------------------------------------------------------------------
8. U.S. Bank National Association 20,571,428.57 45,000,000.00
- --------------------------------------------------------------------------------------
9. NBD Bank 20,571,428.57 45,000,000.00
- --------------------------------------------------------------------------------------
10 ABN AMRO Bank N.V. 20,571,428.57 45,000,000.00
- --------------------------------------------------------------------------------------
11 Barclays Bank PLC 20,571,428.57 45,000,000.00
- --------------------------------------------------------------------------------------
Lenders:
12. KeyBank National Association 16,000,000.00 35,000,000.00
- --------------------------------------------------------------------------------------
13. BankBoston, N.A. 16,000,000.00 35,000,000.00
- --------------------------------------------------------------------------------------
14. KBC Bank, N.V. 16,000,000.00 35,000,000.00
- --------------------------------------------------------------------------------------
15. Fleet National Bank 16,000,000.00 35,000,000.00
- --------------------------------------------------------------------------------------
16. First Union National Bank 16,000,000.00 35,000,000.00
- --------------------------------------------------------------------------------------
17. The Bank of New York 9,142,857.14 20,000,000.00
- --------------------------------------------------------------------------------------
18. BW Capital Markets, Inc. 9,142,857.14 20,000,000.00
- --------------------------------------------------------------------------------------
19. Credit Agricole Indosuez 9,142,857.14 20,000,000.00
- --------------------------------------------------------------------------------------
20. Bank of Tokyo-Mitsubishi Trust 9,142,857.14 20,000,000.00
Company
- --------------------------------------------------------------------------------------
21. IKB Deutsche Industriebank AG 9,142,857.14 20,000,000.00
- --------------------------------------------------------------------------------------
22. US Trust 9,142,857.14 20,000,000.00
- --------------------------------------------------------------------------------------
================================================================================================================
Interim Term Tranche A Term Tranche B Term
Lender Commitment Commitment Commitment
------ ---------- ---------- ----------
- ----------------------------------------------------------------------------------------------------------------
23. Michigan National Bank 4,571,428.57 6,285,714.29 0
- ----------------------------------------------------------------------------------------------------------------
24. National City Bank 4,571,428.57 6,285,714.29 0
- ----------------------------------------------------------------------------------------------------------------
25. Bayerische Hypo-Und
Vereinsbank AG, New York
Branch 4,571,428.57 6,285,714.29 0
- ----------------------------------------------------------------------------------------------------------------
26. Webster Bank 2,285,714.29 3,142,857.14 0
- ----------------------------------------------------------------------------------------------------------------
27. Allstate Life Insurance Company 0 0 4,500,000.00
- ----------------------------------------------------------------------------------------------------------------
28. Allstate Insurance Company 0 0 3,000,000.00
- ----------------------------------------------------------------------------------------------------------------
Appaloosa Management L.P.
- ----------------------------------------------------------------------------------------------------------------
29. KZH Appaloosa LLC 0 0 5,000,000.00
- ----------------------------------------------------------------------------------------------------------------
Citibank Global Asset
Management
- ----------------------------------------------------------------------------------------------------------------
30. Osprey Investments Portfolio 0 0 5,000,000.00
- ----------------------------------------------------------------------------------------------------------------
Conseco Capital Management
- ----------------------------------------------------------------------------------------------------------------
31. KZH CNC LLC 0 0 5,000,000.00
- ----------------------------------------------------------------------------------------------------------------
CypressTree
- ----------------------------------------------------------------------------------------------------------------
32. CypressTree Investment 0 0 1,000,000.00
Fund, LLC
- ----------------------------------------------------------------------------------------------------------------
33. CypressTree Institutional Fund, 0 0 1,000,000.00
LLC
- ----------------------------------------------------------------------------------------------------------------
34. North American Senior Floating
Rate Fund 0 0 1,000,000.00
- ----------------------------------------------------------------------------------------------------------------
35. CypressTree Senior Floating 0 0 250,000.00
Rate Fund
- ----------------------------------------------------------------------------------------------------------------
36. KZH CypressTree-1 LLC 0 0 6,750,000.00
- ----------------------------------------------------------------------------------------------------------------
37. Franklin Floating Rate Trust 0 0 5,000,000.00
- ----------------------------------------------------------------------------------------------------------------
38. Fremont Investment & Loan 0 0 5,000,000.00
- ----------------------------------------------------------------------------------------------------------------
39. General Electric Capital 0 0 5,000,000.00
Corporation
- ----------------------------------------------------------------------------------------------------------------
General Re - New England Asset
Management, Inc.
- ----------------------------------------------------------------------------------------------------------------
40. KZH Waterside LLC 0 0 7,500,000.00
- ----------------------------------------------------------------------------------------------------------------
INVESCO
- ----------------------------------------------------------------------------------------------------------------
=====================================================================================
Revolving
Lender Commitment Total
------ ---------- -----
- -------------------------------------------------------------------------------------
23. Michigan National Bank 9,142,857.14 20,000,000.00
- -------------------------------------------------------------------------------------
24. National City Bank 9,142,857.14 20,000,000.00
- -------------------------------------------------------------------------------------
25. Bayerische Hypo-Und
Vereinsbank AG, New York
Branch 9,142,857.14 20,000,000.00
- -------------------------------------------------------------------------------------
26. Webster Bank 4,571,428.57 10,000,000.00
- -------------------------------------------------------------------------------------
27. Allstate Life Insurance Company 0 4,500,000.00
- -------------------------------------------------------------------------------------
28. Allstate Insurance Company 0 3,000,000.00
- -------------------------------------------------------------------------------------
Appaloosa Management L.P.
- -------------------------------------------------------------------------------------
29. KZH Appaloosa LLC 0 5,000,000.00
- -------------------------------------------------------------------------------------
Citibank Global Asset
Management
- -------------------------------------------------------------------------------------
30. Osprey Investments Portfolio 0 5,000,000.00
- -------------------------------------------------------------------------------------
Conseco Capital Management
- -------------------------------------------------------------------------------------
31. KZH CNC LLC 0 5,000,000.00
- -------------------------------------------------------------------------------------
CypressTree
- -------------------------------------------------------------------------------------
32. CypressTree Investment 0 1,000,000.00
Fund, LLC
- -------------------------------------------------------------------------------------
33. CypressTree Institutional Fund, 0 1,000,000.00
LLC
- -------------------------------------------------------------------------------------
34. North American Senior Floating
Rate Fund 0 1,000,000.00
- -------------------------------------------------------------------------------------
35. CypressTree Senior Floating 0 250,000.00
Rate Fund
- -------------------------------------------------------------------------------------
36. KZH CypressTree-1 LLC 0 6,750,000.00
- -------------------------------------------------------------------------------------
37. Franklin Floating Rate Trust 0 5,000,000.00
- -------------------------------------------------------------------------------------
38. Fremont Investment & Loan 0 5,000,000.00
- -------------------------------------------------------------------------------------
39. General Electric Capital 0 5,000,000.00
Corporation
- -------------------------------------------------------------------------------------
General Re - New England Asset
Management, Inc.
- -------------------------------------------------------------------------------------
40. KZH Waterside LLC 0 7,500,000.00
- -------------------------------------------------------------------------------------
INVESCO
- -------------------------------------------------------------------------------------
================================================================================================================
Interim Term Tranche A Term Tranche B Term
Lender Commitment Commitment Commitment
------ ---------- ---------- ----------
- ----------------------------------------------------------------------------------------------------------------
41. Floating Rate Portfolio 0 0 5,000,000.00
- ----------------------------------------------------------------------------------------------------------------
42. Jackson National Life Insurance 0 0 5,000,000.00
Co.
- ----------------------------------------------------------------------------------------------------------------
JP Morgan
- ----------------------------------------------------------------------------------------------------------------
43. Commingled Pension Fund
(Corporate Bond Special 0 0 2,500,000.00
Situtations Fund)
- ----------------------------------------------------------------------------------------------------------------
44. Commingled Pension Fund 0 0 2,500,000.00
(MGT High Yield Bond Fund)
- ----------------------------------------------------------------------------------------------------------------
45. Massachusetts Mutual Life 0 0 5,000,000.00
Insurance Company
- ----------------------------------------------------------------------------------------------------------------
Merrill Lynch
- ----------------------------------------------------------------------------------------------------------------
46. Merrill Lynch Senior Floating
Rate Fund, Inc. 0 0 6,250,000.00
- ----------------------------------------------------------------------------------------------------------------
47. Morgan Stanley Dean Witter
Prime Income Trust 0 0 5,000,000.00
- ----------------------------------------------------------------------------------------------------------------
48. NationsBank, N.A. 0 0 43,750,000.00
- ----------------------------------------------------------------------------------------------------------------
50. Octagon Loan Trust 0 0 5,000,000.00
- ----------------------------------------------------------------------------------------------------------------
51. Pinehurst Trading, Inc. 0 0 7,500,000.00
- ----------------------------------------------------------------------------------------------------------------
Scudder Kemper
- ----------------------------------------------------------------------------------------------------------------
52. KZH Riverside LLC 0 0 10,000,000.00
- ----------------------------------------------------------------------------------------------------------------
53. SRF Trading, Inc. 0 0 7,500,000.00
- ----------------------------------------------------------------------------------------------------------------
54. KZH Sterling LLC 0 0 7,500,000.00
- ----------------------------------------------------------------------------------------------------------------
SunAmerica
- ----------------------------------------------------------------------------------------------------------------
55. KZH Soleil LLC 0 0 5,000,000.00
- ----------------------------------------------------------------------------------------------------------------
56. KZH Soleil-2 LLC 0 0 5,000,000.00
- ----------------------------------------------------------------------------------------------------------------
57. Toronto Dominion (Texas), Inc. 0 0 10,000,000.00
- ----------------------------------------------------------------------------------------------------------------
58. Transamerica Life Insurance 0 0 5,000,000.00
and Annuity Company
- ----------------------------------------------------------------------------------------------------------------
Travelers
- ----------------------------------------------------------------------------------------------------------------
59. The Travelers Insurance 0 0 3,750,000.00
Company
- ----------------------------------------------------------------------------------------------------------------
====================================================================================
Revolving
Lender Commitment Total
------ ---------- -----
- ------------------------------------------------------------------------------------
41. Floating Rate Portfolio 0 5,000,000.00
- ------------------------------------------------------------------------------------
42. Jackson National Life Insurance 0 5,000,000.00
Co.
- ------------------------------------------------------------------------------------
JP Morgan
- ------------------------------------------------------------------------------------
43. Commingled Pension Fund
(Corporate Bond Special 0 2,500,000.00
Situtations Fund)
- ------------------------------------------------------------------------------------
44. Commingled Pension Fund 0 2,500,000.00
(MGT High Yield Bond Fund)
- ------------------------------------------------------------------------------------
45. Massachusetts Mutual Life 0 5,000,000.00
Insurance Company
- ------------------------------------------------------------------------------------
Merrill Lynch
- ------------------------------------------------------------------------------------
46. Merrill Lynch Senior Floating
Rate Fund, Inc. 0 6,250,000.00
- ------------------------------------------------------------------------------------
47. Morgan Stanley Dean Witter
Prime Income Trust 0 5,000,000.00
- ------------------------------------------------------------------------------------
48. NationsBank, N.A. 0 43,750,000.00
- ------------------------------------------------------------------------------------
50. Octagon Loan Trust 0 5,000,000.00
- ------------------------------------------------------------------------------------
51. Pinehurst Trading, Inc. 0 7,500,000.00
- ------------------------------------------------------------------------------------
Scudder Kemper
- ------------------------------------------------------------------------------------
52. KZH Riverside LLC 0 10,000,000.00
- ------------------------------------------------------------------------------------
53. SRF Trading, Inc. 0 7,500,000.00
- ------------------------------------------------------------------------------------
54. KZH Sterling LLC 0 7,500,000.00
- ------------------------------------------------------------------------------------
SunAmerica
- ------------------------------------------------------------------------------------
55. KZH Soleil LLC 0 5,000,000.00
- ------------------------------------------------------------------------------------
56. KZH Soleil-2 LLC 0 5,000,000.00
- ------------------------------------------------------------------------------------
57. Toronto Dominion (Texas), Inc. 0 10,000,000.00
- ------------------------------------------------------------------------------------
58. Transamerica Life Insurance 0 5,000,000.00
and Annuity Company
- ------------------------------------------------------------------------------------
Travelers
- ------------------------------------------------------------------------------------
59. The Travelers Insurance 0 3,750,000.00
Company
- ------------------------------------------------------------------------------------
================================================================================================================
Interim Term Tranche A Term Tranche B Term
Lender Commitment Commitment Commitment
------ ---------- ---------- ----------
- ----------------------------------------------------------------------------------------------------------------
60. Travelers Corporate Loan Fund 0 0 3,750,000.00
Inc.
- ----------------------------------------------------------------------------------------------------------------
61. Tyler Trading, Inc. 0 0 7,500,000.00
- ----------------------------------------------------------------------------------------------------------------
Trust Company of the West
- ----------------------------------------------------------------------------------------------------------------
62. KZH Crescent LLC 0 0 1,500,000.00
- ----------------------------------------------------------------------------------------------------------------
63. KZH Crescent LLC - 2 0 0 1,500,000.00
- ----------------------------------------------------------------------------------------------------------------
64. KZH Crescent LLC - 3 0 0 2,500,000.00
- ----------------------------------------------------------------------------------------------------------------
65. United of Omaha Life Insurance 0 0 2,000,000.00
Company
- ----------------------------------------------------------------------------------------------------------------
66. Van Kampen Prime Rate Income 0 0 15,000,000.00
Trust
- ----------------------------------------------------------------------------------------------------------------
Total Commitments of the Lenders U.S. $200,000,000.00 U.S. $275,000,000.00 U.S. $275,000,000.00
================================================================================================================
======================================================================================
Revolving
Lender Commitment Total
------ ---------- -----
- --------------------------------------------------------------------------------------
60. Travelers Corporate Loan Fund 0 3,750,000.00
Inc.
- --------------------------------------------------------------------------------------
61. Tyler Trading, Inc. 0 7,500,000.00
- --------------------------------------------------------------------------------------
Trust Company of the West
- --------------------------------------------------------------------------------------
62. KZH Crescent LLC 0 1,500,000.00
- --------------------------------------------------------------------------------------
63. KZH Crescent LLC - 2 0 1,500,000.00
- --------------------------------------------------------------------------------------
64. KZH Crescent LLC - 3 0 2,500,000.00
- --------------------------------------------------------------------------------------
65. United of Omaha Life Insurance 0 2,000,000.00
Company
- --------------------------------------------------------------------------------------
66. Van Kampen Prime Rate Income 0 15,000,000.00
Trust
- --------------------------------------------------------------------------------------
Total Commitments of the Lenders U.S. $400,000,000.00 US $1,150,000,000.00
======================================================================================
SCHEDULE 6.1
DURA OPERATING CORP.
Letters of Credit
- ------------------------------------------------------------------------------------------------------------------------------------
L/C L/C Issuing Expiration Currency L/C Face Beneficiary
Number TYPE Bank Date Type Amount Name Comments
- ------------------------------------------------------------------------------------------------------------------------------------
C7334117 SBLC BofA 7/31/00 CAD 1,779,750.00 NBD Bank, N.A. DURA
- ------------------------------------------------------------------------------------------------------------------------------------
C7258406 SBLC BofA 2/1/00 USD 810,000.00 The Travelers Insurance Co. DURA
- ------------------------------------------------------------------------------------------------------------------------------------
C7291552 SBLC BofA 10/1/99 USD 500,000.00 The Travelers Insurance Co. DURA
- ------------------------------------------------------------------------------------------------------------------------------------
C7315182 SBLC BofA 10/1/99 USD 400,000.00 The Travelers Insurance Co. DURA
- ------------------------------------------------------------------------------------------------------------------------------------
C7401100 SBLC BofA 10/15/00 USD 2,419,000.00 The Travelers Insurance Co. DURA
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
C6404644 DLC BofA 5/21/99 USD 77,666.93 Kyodo International Co. Trident
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
C7354847 SBLC BofA 5/28/99 GBP 70,000.00 Bank of America 6008 Trident
- ------------------------------------------------------------------------------------------------------------------------------------
SCHEDULE 8.1
LIST OF EXISTING GUARANTIES AND COLLATERAL DOCUMENTS
Credit Agreement dated as of August 31, 1994
Dura Automotive Systems, Inc. and Continental Bank (n/k/a Bank of America
National Trust and Savings Association) as Agent
1. Security Agreement, dated as of August 31, 1994, between Dura Automotive
Systems, Inc.,(1) ("Dura") and Continental Bank, as Agent ("Agent") under
Credit Agreement dated as of August 31, 1994.
2. Collateral Patent Security Agreement, dated as of August 31, 1994, by Dura
and Agent.
3. Collateral Trademark Security Agreement, dated as of August 31, 1994, by
Dura and Agent.
4. Collateral Copyright Security Agreement, dated as of August 31, 1994, by
Dura and Agent.
5. Mortgage (East Jordan, Michigan), dated as of August 31, 1994, by Dura in
favor of Agent.
6. Mortgage (Mancelona, Michigan), dated as of August 31, 1994, by Dura in
favor of Agent.
7. Junior Deed of Trust and Security Agreement (Hannibal, Missouri), dated as
of August 31, 1994, by and between Dura, John L. Sullivan, as Trustee, and
Agent [Hannicon Property].
8. Deed of Trust (Hannibal, Missouri), dated as of August 31, 1994, by and
between Dura, John L. Sullivan, as Trustee, and Agent [Rivcon Property].
9. Deed of Trust (Brookfield, Missouri), dated as of August 31, 1994, by and
between Dura, John L. Sullivan, as Trustee, and Agent [Caybrook Property].
10. Pledge Agreement, dated as of August 31, 1994, by Dura to Agent.
11. Corporate Guaranty by Dura De Mexico S.A. de C.V. ("Dura Mexico"), dated
as of August 31, 1994.
12. Accounts Receivable Pledge Agreement, dated as of August 31, 1994, by and
between Dura Mexico and Agent and agreed to by Dura.
13. Corporate Guaranty by MC Holding Corp. (merged into Dura Automotive
Systems, Inc. on December 30, 1998), dated as of August 31, 1994.
- ----------
(1) Name changed from "Dura Automotive Systems, Inc." to "Dura Operating Corp."
on June 10, 1996. The parent corporation of MC Holding Corp. (the
intermediate holding company which held the stock in Dura Operating Corp.
until December 30, 1998) was then named Dura Automotive Systems, Inc.
14. Pledge Agreement, dated as of August 31, 1994, by MC Holding Corp. (merged
into Dura Automotive Systems, Inc. on December 30, 1998) in favor of
Agent.
-2-
Amended and Restated Multicurrency Credit Agreement dated as of December 5, 1996
Dura Operating Corp. and Bank of America NT&SA as Agent
1. Amended and Restated Security Agreement, dated as of December 5, 1996,
between Dura Operating Corp. ("Dura") and Bank of America NT & SA, as
Agent for the lenders (and successor-in-interest to Continental Bank)
("Agent").
2. Reaffirmation of Collateral Documents, dated as of December 5, 1996, by
Dura in favor of Agent.
3. Supplemental Collateral Patent Security Agreement, dated as of December 5,
1996, by Dura and Agent.
4. Supplemental Collateral Trademark Security Agreement, dated as of December
5, 1996, by Dura and Agent.
5. First Amendment to Mortgage (East Jordan, Michigan), dated as of December
5, 1996, by and between Dura and Agent.
6. First Amendment to Mortgage (Mancelona, Michigan), dated as of December 5,
1996, by and between Dura and Agent.
7. First Amendment to Deed of Trust (Hannicon, Hannibal, Missouri), dated as
of December 5, 1996, by and between Dura and Agent.
8. First Amendment to Deed of Trust (Rivcon, Hannibal, Missouri), dated as of
December 5, 1996, by and between Dura and Agent.
9. First Amendment to Deed of Trust (Caybrook, Brookfield, Missouri), dated
as of December 5, 1996, by and between Dura and Agent.
10. Reaffirmation of Pledge Agreement (Dura Operating Corp.), dated as of
December 5, 1996, by Dura in favor of Agent.
11. Pledge Agreement (Dura Operating Corp.), dated as of December 5, 1996, by
Dura in favor of Agent.
12. Collateral Assignment of Undertakings Under Stock and Asset Purchase
Agreement, dated as of December 5, 1996, by Dura in favor of Agent.
13. Amended and Restated Corporate Guaranty of MC Holding Corp. (merged into
Dura Automotive Systems, Inc. on December 30, 1998), dated as of December
5, 1996.
14. Reaffirmation of Pledge Agreement (MC Holding Corp.), dated as of December
5, 1996, by MC Holding Corp. (merged into Dura Automotive Systems, Inc. on
December 30, 1998) in favor of Agent.
15. Corporate Guaranty by Dura Automotive Systems, Inc. (parent of MC Holding
Corp.) ("DASI"), dated as of December 5, 1996.
16. Pledge Agreement (Dura Automotive Systems, Inc.), dated as of December 5,
1996, by DASI in favor of Agent.
-3-
17. Corporate Guaranty of Sparton Engineered Products, Inc., KPI Group(2),
dated as of December 5, 1996.
18. Security Agreement, dated as of December 5, 1996 by Sparton Engineered
Products, Inc. KPI Group.(2)
19. Collateral Patent Security Agreement, dated as of December 5, 1996, by
Sparton Engineered Products, Inc., KPI Group.(2)
- ----------
(2) Name later changed from "Sparton Engineered Products, Inc., KPI Group" to
"Dura Automotive Systems, Inc., Shifter Operations"; and merged into Dura
Operating Corp. on December 30, 1998.
-4-
German Collateral Documents
Amended and Restated Multicurrency Credit Agreement dated as of December 5, 1996
Dura Operating Corp. and Bank of America NT&SA as Agent
(3)
1. Share Pledge Agreement, dated February 7, 1997, between Dura, KIMANUS
Vermogensverwaltung GmbH ("Kimanus")* and BofA, and
2. Public Deed (KIMANUS Vermogensverwaltungd GmbH).
3. Share Pledge Agreement relating to Shares in Talia 96 Vermogensverwaltung
GmbH
4. Public Deed of Dura, dated February 7, 1997.
5. Pledge Agreement relating to Limited Partnership Interests in Vofa Seilzug
GmbH & Co.Vertriebs-KG.
6. Pledge Agreement relating to Limited Partnership Interests in Vofa
Seilzuge Gehren GmbH & Co. KG.
7. Pledge Agreement relating to Limited Partnership Interests in Vofa
Production Centers Vorbruggen GmbH & Co. KG.
8. Pledge Agreement relating to Limited Partnership Interests in Vofa-Werk
Xavier Vorbruggen GmbH & Co. KG.
9. Guaranty by Talia Vermogensverwaltung GmbH.
10. Guarantee Fee Arrangement (Talia 96 Vermogensverwaltung GmbH).
11. Guaranty by Vofa Seilzug GmbH & Co. Vertriebs-KG.
12. Guarantee Fee Arrangement (Vofa Seilzug GmbH & Co. Vertriebs-KG).
13. Guaranty by Vofa Seilzuge Gehren GmbH & Co. KG.
14. Guarantee Fee Arrangement (Vofa Seilzuge Gehren GmbH & Co. KG).
15. Guaranty by Vofa Production Centers Vorbruggen GmbH & Co. KG.
16. Guarantee Fee Arrangement (Vofa Production Centers Vorbruggen GmbH & Co.
KG).
17. Guaranty by Vofa-Werk Xavier Vorbruggen GmbH & Co. KG.
18. Guarantee Fee Arrangement (Vofa-Werk Xavier Vorbruggen GmbH & Co. KG).
- ----------
(3) Name later changed from "KIMANUS Vermogensverwaltung GmbH" to "Dura
Automotive Systems Europe GmbH".
-5-
Consolidated Amendment No. 1 dated as of August 29, 1997 to
Amended and Restated Multicurrency Credit Agreement
Dura Operating Corp. and Bank of America NT & SA as Agent
1. Collateral Assignment of Undertakings under Stock Purchase Agreement,
dated as of August 29, 1997, by Dura Shifter Holding Corp. (merged into
Dura Operating Corp on December 30, 1998) in favor of Agent.
2. Reaffirmation and Amendment No. 1 to Pledge Agreement (Dura Operating Co.
[sic]), dated as of August 29, 1997, by Dura Operating Corp. in favor of
Agent.
3. Second Amendment to Mortgage (East Jordan, Michigan), dated as of August
29, 1997 between Dura and Agent.
4. Second Amendment to Mortgage (Mancelona, Michigan), dated as of August 29,
1997, between Dura and Agent.
5. Second Amendment to Deed of Trust (Hannicon, Hannibal, Missouri), dated as
of August 29, 1997, between Dura and Agent.
6. Second Amendment to Deed of Trust (Rivcon, Hannibal, Missouri), dated as
of August 29, 1997, between Dura and Agent.
7 Second Amendment to Deed of Trust (Caybrook, Brookfield, Missouri), dated
as of August 29, 1997, between Dura and Agent.
8. Corrective Serial Information regarding Schedules to Supplemental
Collateral Patent Security Agreement.
9. Reaffirmation of Letter Agreement, dated December 5, 1996, (Missouri
Department of Economic Development).
10. Letter from insurance agent regarding named insureds.
11. Corporate Guaranty, dated August, 29, 1997, of Dura Shifter Holding Corp.
(merged into Dura Operating Corp. on December 30, 1998).
12. Security Agreement, dated as of August 29, 1997, between Dura Shifter
Holding Corp. (merged into Dura Operating Corp. on December 30, 1998) and
Agent.
-6-
Consolidated Amendment No. 1 dated as of August 29, 1997 to
Amended and Restated Multicurrency Credit Agreement
Dura Operating Corp. and Bank of America NT & SA as Agent (continued)
13. Pledge Agreement (Dura Shifter Holding Corp.), dated as of August 29,
1997, by Dura Shifter Holding Corp. (merged into Dura Operating Corp. on
December 30, 1998) in favor of Agent.
14. Corporate Guaranty, dated August 29, 1997, of GT Automotive Systems,
Inc.(4)
15. Security Agreement, dated as of August 29, 1997 between GT Automotive
Systems, Inc.(3) and Agent.
16. Pledge Agreement (GT Automotive Systems, Inc.), dated as of August 29,
1997, by GT Automotive Systems, Inc.(3) in favor of Agent.
17. Certificates of property and boiler and machinery insurance, certificates
of liability insurance, and side letters regarding insurance coverage.
18. Corporate Guaranty, dated August 29, 1998 of GT Shift Systems, Inc.(5)
19. Security Agreement, dated August 29, 1997, between GT Shift Systems,
Inc.(4) and Agent.
20. Landlord's Agreement, executed August 28, 1997, by Wolverine Bronze Co.,
in favor of Agent.
21. Letters, dated August 29, 1997, reaffirming Pledge Agreements from:
(a) Talia 96 Vermogensverwaltung GmbH ("Talia"), Vofa Seilzug
Beteiligungs GmbH, Klaus X. Und Piet J. Vorbruggen GmbH.
(b) Vofa Seilzug GmbH & Co. Vertriebs-KG ("Vofa Seilzug") and Vofa
Seilzug Beteiligungs GmbH.
(c) Vofa Production Centers Vorbruggen GmbH & Co. KG and Klaus X. und
Piet J.Vorbruggen GmbH.
22. Letters dated August 29, 1997 reaffirming Guaranties, dated February 7,
1997, among Talia, Vofa Seilzug, Vofa Seilzuge Gehren GmbH & Co. KG, Vofa
Production Centers Vorbruggen GmbH & Co. KG and Vofa Werk Xavier
Vorbruggen GmbH & Co. KG.
23. Letter dated August 29, 1997 reaffirming Amended and Restated Corporate
Guaranty, dated December 5, 1998, by MC Holding Corp. (merged on December
30, 1998 into Dura Automotive Systems, Inc.)
24. Letter dated August 29, 1997 reaffirming Corporate Guaranty, dated as of
December 5, 1996, of DASI.
- ----------
(4) Name later changed from "GT Automotive Systems, Inc." to "Dura Automotive
Systems, Inc. Column Shifter Operations".
(5) Name later changed from "GT Shift Systems, Inc." to "Dura Shift Systems,
Inc", and merged on December 30, 1998 into Dura Automotive Systems, Inc.
Column Shifter Operations.
-7-
Consolidated Amendment No. 1 dated as of August 29, 1997 to
Amended and Restated Multicurrency Credit Agreement
Dura Operating Corp. and Bank of America NT & SA as Agent (continued)
25. Letter dated August 29, 1997 reaffirming Corporate Guaranty, dated as of
December 5, 1996 of Dura Automotive Systems, Inc., Shifter Operations
(merged on December 30, 1998 into Dura Operating Corp.).
[26. Master Note, dated August 29, 1997, of GT Automotive Systems (Windsor),
Ltd.]
-8-
Collateral Documents
Acquisition of Universal Tool & Stamping Company, Inc.
Dura Operating Corp. March 9, 1998
1. Collateral Assignment of Undertakings Under Stock Purchase Agreement,
dated March 9, 1998, by Dura in favor of Agent.
2. Reaffirmation and Amendment No. 2 of Pledge Agreement (Dura Operating Co.
[sic]), dated as of March 9, 1998, by Dura in favor of Agent.
3. Corporate Guaranty, dated March 9, 1998, by Universal Tool & Stamping
Company, Inc. ("Universal").
4. Security Agreement, dated as of March 9, 1998, between Universal and
Agent.
5. Collateral Patent Security Agreement, dated as of March 9, 1998, by
Universal and Agent.
6. Collateral Trademark Security Agreement, dated as of March 9, 1998, by
Universal and Agent.
-9-
Consolidated Amended and Restated Credit Agreement dated as of April 30, 1998
Dura Operating Corp., various affiliates and Bank of America NT & SA as Agent
1. Reaffirmation and Amendment of Guaranties dated as of April 30, 1998 by
Dura Automotive Systems, Inc., MC Holding Corp. (merged on December 30,
1998 into Dura Automotive Systems, Inc.), Dura Operating Corp., Dura
Automotive Systems, Inc., Shifter Operations (merged on December 30, 1998
into Dura Operating Corp.), Dura Shifter Holding Corp. (merged on December
30, 1998 into Dura Operating Corp.), Dura Automotive Systems, Inc. Column
Shifter Operations, Dura Shift Systems, Inc. (merged on December 30, 1998
into Dura Automotive Systems, Inc. Column Shifter Operations), and
Universal Tool & Stamping Company, Inc.
2. Reaffirmation and Amendment of Collateral Documents dated as of April 30,
1998 by Dura Automotive Systems, Inc., MC Holding Corp. (merged on
December 30, 19998 into Dura Automotive Systems, Inc.), Dura Operating
Corp., Dura Automotive Systems, Inc. Shifter Operations (merged on
December 30, 1998 into Dura Operating Corp.), Dura Shifter Holding Corp.
(merged on December 30, 1998 into Dura Operating Corp.), Dura Automotive
Systems, Inc., Column Shifter Operations, Dura Shift Systems, Inc. (merged
on December 30, 19998 into Dura Automotive Systems, Inc. Column Shifter
Operations), and Universal Tool & Stamping Company, Inc.
3. Dura Operating Corp.
a. Amended and Restated Corporate Guaranty
b. Third Amendment to Deed of Trust (Caybrook, Brookfield, Missouri)
c. Third Amendment to Deed of Trust (Hannicon, Hannibal, Missouri)
d. Third Amendment to Deed of Trust (Rivcon, Hannibal, Missouri)
e. Third Amendment to Mortgage (East Jordan, Michigan)
f. Third Amendment to Mortgage (Mancelona, Michigan)
g. Title insurance datedowns for deed of trust and mortgage amendments
h. Deed of Charge and Memorandum of Deposit from Dura Operating Corp.
covering 65% of the shares in Dura Automotive Systems (UK) Limited
-- original share certificate evidencing 65% of shares in Dura
Automotive Systems (UK), Limited and signed blank, undated
stock transfer form
-- Form 395 and evidence of attempt to register (registration not
permitted against company without an established place in
England or Wales)
4. Dura Automotive Systems (Canada), Ltd.
a. Fixed and Floating Charge Demand Debenture dated May 14, 1998 from
Dura Automotive Systems (Canada), Ltd.
-- PPSA financing statement and amendment
-10-
-- Pledge Agreement dated May 14, 1998 regarding the Fixed and
Floating Charge Demand Debenture from the Dura Automotive
Systems (Canada), Ltd.
b. Charge/Mortgage of Land dated May 14, 1998 of Dura Automotive
Systems (Canada), Ltd. covering real property registered in Windsor,
Ontario
c. Charge/Mortgage of Land dated May 14, 1998 of Dura Automotive
Systems (Canada), Ltd. covering real property registered in
Brantford, Ontario
d. Security Agreement (Patent) dated May 14, 1998 by Dura Automotive
Systems (Canada), Ltd.
e. Security Agreement (Trademark) dated as of May 14, 1998 by Dura
Automotive Systems (Canada), Ltd.
f. -- Confirmation of registration on May 13, 1998 of Notice of
Intention to give security under Section 427 of the Bank Act
(Canada) by Dura Automotive Systems (Canada), Ltd. in favor of
Bank of America Canada
-- Application for credit and promise to give security under
Section 427 of the Bank Act (Canada) dated May 14, 1998 by
Dura Automotive Systems (Canada), Ltd. to Bank of America
Canada
-- Agreement as to Powers of Bank of America Canada in Relation
to All Loans and Advances and Security Therefor under the Bank
Act (Canada) dated May 14, 1998 between Dura Automotive
Systems (Canada), Ltd. and Bank of America Canada
-- Special Security in respect of specified property described in
Section 427 of the Bank Act (Canada) dated May 14, 1998 made
by Dura Automotive Systems (Canada), Ltd. in favor of Bank of
America Canada
5. Dura UK Limited (f/k/a Dura Automotive Systems (UK) Limited)
a. Guaranty by Dura Automotive Systems (UK) Limited
b. Deed of Charge and Memorandum of Deposit from Dura Automotive
Systems (UK) Limited covering shares in Trident Automotive PLC
-- original share certificates evidencing shares in Trident
Automotive PLC and signed blank, undated stock transfer forms
-- Certificate of the Registration of a Mortgage or Charge
6. Trident Automotive PLC
a. Amended and Restated Corporate Guaranty by Trident Automotive PLC
b. Debenture creating Fixed and Floating Charges from Trident
Automotive PLC
-- original share certificates evidencing shares in Trident
Automotive (UK) Limited (n/k/a Dura Automotive Systems
Limited) and Spicebright Limited and signed blank, undated
stock transfer forms
-- Certificate of the Registration of a Mortgage or Charge
-11-
7. Dura Automotive Systems Limited (f/k/a Trident Automotive (UK) Limited)
a. Guaranty by Trident Automotive (UK) Limited
b. Debenture creating Fixed and Floating Charges from Trident UK
-- Certificate of the Registration of a Mortgage or Charge
-- Registration of Charge in Land Registry
8. Spicebright Limited
a. Guaranty by Spicebright Limited
b. Debenture creating Fixed and Floating Charges from Spicebright
Limited
-- Certificate of the Registration of a Mortgage or Charge
c. Deed of Pledge of Shares (notarized) in the capital of Moblan from
Spicebright Limited
9. Moblan Investments B.V.
a. Guaranty by Moblan Investments B.V.
b. Pledge Agreement dated as of May 14, 1998 by Moblan Investments B.V.
covering the shares of Trident Automotive Canada Inc. (n/k/a Dura
Automotive Systems Cable Operations Canada, Inc.)
-- original share certificate evidencing shares in Trident
Automotive Canada Inc. (n/k/a Dura Automotive Systems Cable
Operations Canada, Inc.) and signed blank, undated stock
transfer form
10. Dura Automotive Systems Cable Operations Canada, Inc. (f/k/a Trident
Automotive Canada Inc.)
a. Guaranty by Trident Automotive Canada, Inc.
b. Fixed and Floating Charge Demand Debenture dated May 14, 1998 from
Trident Automotive Canada Inc.
-- PPSA financing statement and amendment
-- Pledge Agreement dated May 14, 1998 regarding the Fixed and
Floating Charge Demand Debenture from Trident Automotive
Canada Inc.
c. Pledge Agreement dated as of May 14, 1998 from Trident Automotive
Canada Inc. covering the shares of Trident Automotive, Inc.
-- original share certificate evidencing shares in Dura
Automotive Systems Cable Operations, Inc. (delivered in
replacement of certificate evidencing shares of Trident
Automotive, Inc. to reflect name change) and signed blank,
undated stock transfer form
d. Pledge Agreement dated as of May 14, 1998 from Trident Automotive
Canada Inc. covering the shares of Trident Automotive Limited, an
Ontario corporation, and partnership interest in Trident Automotive,
L.P.
-12-
-- original share certificates evidencing shares in Trident
Automotive Limited containing signed blank, undated stock
transfer forms
e. Charge/Mortgage of Land dated May 14, 1998 of Trident Automotive
Canada Inc. covering Stratford, Ontario property
f. Security Agreement (Patent) dated as of May 14, 1998 by Trident
Automotive Canada Inc. and confirmation of registration
g. Security Agreement (Trademark) dated as of May 14, 1998 by Trident
Automotive Canada Inc. and confirmation of registration
h. -- Confirmation of registration on May 13, 1998 of Notice of
Intention to give security under Section 427 of the Bank Act
(Canada) by Trident Automotive Canada Inc. in favor of Bank of
America Canada
-- Application for credit and promise to give security under
Section 427 of the Bank Act (Canada) dated May 14, 1998 by
Trident Automotive Canada Inc. to Bank of America Canada
-- Agreement as to Powers of Bank of America Canada in Relation
to All Loans and Advances and Security Therefor under the Bank
Act (Canada) dated May 14, 1998 between Trident Automotive
Canada Inc. and Bank of America Canada
-- Special Security in respect of specified property described in
Section 427 of the Bank Act (Canada) dated May 14, 1998 made
by Trident Automotive Canada Inc. in favor of Bank of America
Canada
11. Dura Automotive Systems Cable Operations, Inc. (f/k/a Trident Automotive,
Inc.).
a. Guaranty by Trident Automotive, Inc.
b. Security Agreement from Trident Automotive, Inc.
c. UCC financing statements
d. Collateral Patent Security Agreement from Trident Automotive, Inc.
e. Mortgage covering Blytheville, Arkansas property
f. Deed of Trust covering Milan, Tennessee property
-13-
Acquisition of Edgewood Manufacturing Corp.
1. Corporate Guaranty (Edgewood Manufacturing Corp.) dated September 16, 1998
by Edgewood Manufacturing Corp. (merged on December 30, 1998 into
Universal Tool & Stamping Company, Inc.).
2. Security Agreement dated as of September 16, 1998 between Edgewood
Manufacturing Corporation (merged on December 30, 1998 into Universal Tool
& Stamping Company, Inc.) and the Agent.
3. Collateral Patent Security Agreement dated as of September 16. 1998
between Edgewood Manufacturing Corp. (merged on December 30, 1998 into
Universal Tool & Stamping Company, Inc.) and the Agent.
-14-
SCHEDULE 8.1(d)
GUARANTIES TO BE DELIVERED IN CONNECTION WITH
AMENDED AND RESTATED CREDIT AGREEMENT
Part I: Guaranties and Reaffirmations of Guaranties to be delivered on Effective
Date
1. Reaffirmation and Amendment of Guaranties by Dura Automotive Systems,
Inc., Dura Operating Corp., Dura Automotive Systems, Inc. Column Shifter
Operations, Universal Tool & Stamping Company, Inc. and Dura Automotive
Systems Cable Operations, Inc.
2. Amended and Restated Corporate Guaranty by Dura Automotive Systems, Inc.,
Dura Automotive Systems, Inc. Column Shifter Operations and Universal Tool
& Stamping Company, Inc.
3. Amended and Restated Corporate Guaranty by Dura Operating Corp.
4. Amended and Restated Guaranty by Dura UK Limited (f/k/a Dura Automotive
Systems (UK) Limited)
5. Amended and Restated Corporate Guaranty by Trident Automotive PLC
6. Amended and Restated Corporate Guaranty by Dura Automotive Systems Limited
7. Amended and Restated Corporate Guaranty by Spicebright Limited
8. Amended and Restated Corporate Guaranty by Moblan Investments B.V.
9. Amended and Restated Corporate Guaranty by Dura Automotive Systems Cable
Operations Canada, Inc.
10. Amended and Restated Corporate Guaranty by Dura Automotive Systems Cable
Operations, Inc.
Part II: Guaranties to be delivered on the Adwest Closing Date
1. Guaranty by Adwest Electronics Inc. and Adwest Western Automotive Inc.
Part III: Guaranties to be delivered on the Excel Closing Date
1. Guaranty by Atwood Industries, Inc., X.E. Co., Excel of Tennessee, L.P.,
Excel Corporation, Excel Industries of Michigan, Inc., Anderson
Industries, Inc., Hydro Flame Corporation, Mark 1 Molded Plastics, Inc.,
Mark 1 Molded Plastics of Tennessee, Inc., and Atwood Automotive Inc.
SCHEDULE 8.1(e)
COLLATERAL DOCUMENTS TO BE DELIVERED IN CONNECTION WITH
AMENDED AND RESTATED CREDIT AGREEMENT
Part I: Collateral Documents and Reaffirmations of Collateral Documents to
be delivered on Effective Date
Multiple Grantors
1. Reaffirmation and Amendment of Collateral Documents by (i) Dura Automotive
Systems, Inc., Dura Operating Corp., Dura Automotive Systems, Inc., Column
Shifter Operations, Universal Tool & Stamping Company, Inc., Dura
Automotive Systems Cable Operations Inc. in favor of (ii) Bank of America
National Trust and Savings Association, as Agent.
2. Security Agreement among (i) Dura Automotive Systems, Inc., Dura Operating
Corp., Dura Automotive Systems, Inc., Column Shifter Operations, Universal
Tool & Stamping Company, Inc., and Dura Automotive Systems Cable
Operations Inc., and (ii) Bank of America National Trust and Savings
Association, as Agent.
Dura Automotive Systems, Inc.
3. Amended and Restated Pledge Agreement by Dura Automotive Systems, Inc. to
Agent covering equity in Dura Operating Corp.
Dura Operating Corp.
4. Amended and Restated Pledge Agreement by Dura Operating Corp. to Agent
covering equity in Dura Automotive Systems, Inc., Column Shifter
Operations and Universal Tool & Stamping Company, Inc.
5. Fourth Amendment to Mortgage (East Jordan, Michigan), dated as of August
31, 1994, by Dura Operating Corp. in favor of Agent.
6. Fourth Amendment to Mortgage (Mancelona, Michigan), dated as of August 31,
1994, by Dura in favor of Agent.
7. Fourth Amendment to Junior Deed of Trust and Security Agreement (Hannibal,
Missouri), dated as of August 31, 1994, by and between Dura, John L.
Sullivan, as Trustee, and Agent [Hannicon Property].
8. Fourth Amendment to Deed of Trust (Hannibal, Missouri), dated as of August
31, 1994, by and between Dura, John L. Sullivan, as Trustee, and Agent
[Rivcon Property].
9. Fourth Amendment to Deed of Trust (Brookfield, Missouri), dated as of
August 31, 1994, by and between Dura, John L. Sullivan, as Trustee, and
Agent [Caybrook Property].
-2-
10. Deed of Charge and Memorandum of Deposit from Dura Operating Corp.
covering 65% of the shares in Dura UK Limited (f/k/a Dura Automotive
Systems (UK) Limited)
Dura Automotive Systems, Inc. Column Shifter Operations
11. Amended and Restated Pledge Agreement (Dura Automotive Systems, Inc.
Column Shifter Operations) by Dura Automotive Systems, Inc. Column Shifter
Operations in favor of Agent covering 65% of shares in Dura Automotive
Systems (Canada) Ltd.
Universal Tool & Stamping Company, Inc.
12. Mortgage from Universal Tool & Stamping Company, Inc. (Manchester,
Michigan).
Dura Automotive Systems (Canada), Ltd.
13. Reaffirmation and Amendment of Collateral Documents among Dura Automotive
Systems (Canada), Ltd., the Agent and Bank of America Canada.
Dura UK Limited
14. Deed of Charge and Memorandum of Deposit from Dura UK Limited covering
shares in Trident Automotive PLC and Dura Automotive Acquisition Limited.
Trident Automotive PLC
15. Supplemental Deed to Debenture creating Fixed and Floating Charges from
Trident Automotive PLC
Dura Automotive Systems Limited (f/k/a Trident Automotive (UK) Limited)
16. Supplemental Deed to Debenture creating Fixed and Floating Charges from
Dura Automotive Systems Limited
Spicebright Limited
17. Supplemental Deed to Debenture creating Fixed and Floating Charges from
Spicebright Limited
18. Restated Deed of Pledge of Shares (notarized) in the capital of Moblan
Investments B.V. from Spicebright Limited
-3-
Moblan Investments B.V.
19. Restated Pledge Agreement by Moblan Investments B.V. covering the shares
of Dura Automotive Systems Cable Operations Canada, Inc. (f/k/a Trident
Automotive Canada Inc.)
20. Pledge of Stock in Dura Holdings France S.A.
21. Reaffirmation and Amendment of Pledge Agreement by Moblan Investments,
B.V.
Dura Automotive Systems Cable Operations Canada, Inc. (f/k/a Trident
Automotive Canada Inc.)
22. Reaffirmation and Amendment of Collateral Documents among Dura Automotive
Systems Cable Operations Canada, Inc., the Agent and Bank of America
Canada.
Dura Automotive Systems Cable Operations, Inc. (f/k/a Trident Automotive,
Inc.)
23. First Amendment to Mortgage covering Blytheville, Arkansas property
24. First Amendment to Deed of Trust covering Milan, Tennessee property
-4-
SCHEDULE 8.1(e) (continued)
COLLATERAL DOCUMENTS TO BE DELIVERED IN CONNECTION WITH
AMENDED AND RESTATED CREDIT AGREEMENT
Part II: Collateral Documents to be delivered on the Adwest Closing Date
1. Joinder Agreement (Adwest) to Security Agreement by Adwest Western
Automotive Inc. and Adwest Electronics Inc.
Adwest Electronics Inc.
2. Pledge Agreement of Adwest Electronics Inc. covering equity in Adwest
Western Automotive Inc. and Adwest USA Inc.
Adwest Western Automotive Inc.
3. Mortgage covering 576 Beck Street Jonesville, Michigan property.
-5-
SCHEDULE 8.1(e) (continued)
COLLATERAL DOCUMENTS TO BE DELIVERED IN CONNECTION WITH
AMENDED AND RESTATED CREDIT AGREEMENT
Part III: Collateral Documents to be delivered on the Excel Closing Date
1. Joinder Agreement (Excel) to Security Agreement by X.E. Co., Excel of
Tennessee, L.P., Excel Corporation, Excel Industries of Michigan, Inc.,
Anderson Industries, Inc., Atwood Industries, Inc., Hydro Flame
Corporation, Mark I Molded Plastics, Inc., Mark I Molded Plastics of
Tennessee, Inc., and Atwood Automotive Inc.
Dura Operating Corp.
2. Supplement to Pledge Agreement between Dura Operating Corp. and the Agent
covering equity interests in Urethane Technologies, Inc., Excel of
California, Inc., Anderson Industries, Inc., Excel Industries of Michigan,
Inc., Excel Corporation, X.E. Co. and Excel-Schade Inc.
3. Leasehold Mortgage covering 27335 West Eleven Mile Road, Southfield, MI
48034.
4. Leasehold Mortgage covering 64 Fearing Boulevard, Toledo, OH 43607.
5. Mortgage covering 132 Ferro Road, Pikeville, TN 37367.
6. Mortgage covering 616 West McKinley Highway, Mishawaka, IN 46545.
7. Mortgage covering 100 North Graham Avenue, Bowling Green, KY 42101.
8. Mortgage covering 55489 Lexington Park Drive, Elkhart, IN 46514.
9. Mortgage covering 1775 East US 20, LaGrange, IN 46761.
Atwood Industries, Inc.
10. Pledge Agreement between Atwood Industries, Inc. and the Agent covering
equity interests in Hydro Flame Corporation, Atwood Automotive, Inc. and
Mark I Molded Plastics, Inc.
11. Mortgage covering 4750 Hiawatha Drive, Rockford, IL 61103-1298.
12. Mortgage covering 57912 Charlotte Avenue, Elkhart, IN 46517.
13. Mortgage covering 6320 Kelly Willis Road, Greenbriar, TN 37073.
14. Mortgage covering 2500/2433 Fremont Street, Rockford, IL 61103.
15. Mortgage covering 800 Highway 150 South, West Union, IA 52175.
16. Mortgage covering 301 South Simmons Street, Stockton, IL 61085.
17. Mortgage covering 905 South Jackson, Mt. Carroll, IL 61053.
Hydro Flame Corporation
18. Mortgage covering 2090 South Pioneer Road, Salt Lake City, UT 84104.
19. Mortgage covering 1874 South Pioneer Road, Salt Lake City, UT 84104.
-6-
Mark I Molded Plastics, Inc.
20. Pledge Agreement between Mark I Molded Plastics, Inc. and the Agent
covering equity interests in Mark I Molded Plastics of Tennessee, Inc.
21. Mortgage covering 1640 U.S. 12, Jonesville, Michigan.
Mark I Molded Plastics of Tennessee, Inc.
22. Mortgage covering Mark I Drive, Henry, Tennessee.
Excel of Tennessee, L.P. and Dura Operating Corp.
23. Mortgage covering 2200 Helton Drive, Lawrenceburg, Tennessee.
Anderson Industries, Inc.
24. Pledge Agreement between Anderson Industries, Inc. and the Agent covering
equity interests in Atwood Industries, Inc.
X.E. Co.
25. Assignment and Pledge Agreement between X.E. Co., Excel Industries of
Michigan, Inc. and the Agent covering partnership interest in Excel of
Tennessee L.P.
Excel Industries of Michigan, Inc.
26. Assignment and Pledge Agreement between X.E. Co., Excel Industries of
Michigan, Inc. and the Agent covering partnership interest in Excel of
Tennessee L.P.
Excel Corporation
27. Mortgage covering 1120 North Main Street, Elkhart, IN 46514.
-7-
SCHEDULE 8.1(f)
TRIDENT ACQUISITION DOCUMENTS
Stock Purchase Agreement, dated as of April 8, 1998, by and among Dura
Automotive Systems (U.K.), Ltd. as Buyer and the Sellers specified therein.
Stock Purchase Agreement, dated as of April _, 1998, by and between D. Michael
Dodge as Seller and Dura Automotive Systems (U.K.), Ltd as Buyer.
Stock Purchase Agreement, dated as of April _, 1998, by and between Mervyn Edgar
as Seller and Dura Automotive Systems (U.K.), Ltd as Buyer.
Stock Purchase Agreement, dated as of April _, 1998, by and between Geoffrey
Hill as Seller and Dura Automotive Systems (U.K.), Ltd as Buyer.
Stock Purchase Agreement, dated as of April _, 1998, by and between Thomas
Humann as Seller and Dura Automotive Systems (U.K.), Ltd as Buyer.
Stock Purchase Agreement, dated as of April _, 1998, by and between Daniel
Robusto as Seller and Dura Automotive Systems (U.K.), Ltd as Buyer.
Stock Purchase Agreement, dated as of April _, 1998, by and between Francis
Sarrazin as Seller and Dura Automotive Systems (U.K.), Ltd as Buyer.
Stock Purchase Agreement, dated as of April _, 1998, by and between Lothar Sing
as Seller and Dura Automotive Systems (U.K.), Ltd as Buyer.
SCHEDULE 8.2A
ADWEST DEBT TO BE REPAID
1. $40,000,000 Notes dated March 15, 1995, made by Adwest, payable to
Principle Mutual Life Insurance Co. and Metropolitan Life Insurance
Co./Metropolitan Property and Casualty Insurance Co., with an outstanding
balance of $40,000,000 as of March 8, 1999. (Expiration date March 15,
2005.) An offer to prepay these Notes was made on March 15, 1999, which
requires the payment of a Make-Whole Premium of approximately $3,731,763.
If the offer to prepay is accepted by the holders of the Notes, repayment
will be made on or about April 5, 1999.
2. $10,000,000 unsecured Working Capital Line, made by Adwest Western
Automotive, Inc., payable to Comerica Bank, with and outstanding balance
of $9,443,000 as of March 8, 1999. (Expiration date October 1, 1999.)
3. DM30,000,000 unsecured Note dated September 10, 1997, made by Adwest,
payable to Barclays PLC and Comerica Bank, with an outstanding balance of
DM24,000,000 as of March 8, 1999. (Expiration date September 10, 2002.)
4. FF85,000,000 unsecured Note dated December 6, 1996, made by Adwest,
payable to Barclays Bank PLC, with an outstanding balance of FF85,000,000
as of March 8, 1999. (Expiration date December 6, 1999.)
5. FF6,000,000 unsecured Note dated January 14, 1998, made by Adwest Bowden
France, payable to Barclays Bank PLC, with an outstanding balance of
FF5,221,000 as of March 8, 1999. (Expiration date January 14, 2005.)
SCHEDULE 8.3A
EXCEL DEBT TO BE REPAID
1. $100,000,000 principal amount of 7.78% Senior notes, made by Excel,
payable to various note holders, with an outstanding principal balance of
$100,000,000 outstanding as of January 2, 1999. (Expiration date April 30,
2011.) Accrued interest of $1,102,166.67 and a Make-Whole Premium of
$12,031,823.00 will also be paid.
SCHEDULE 9.9
EXCLUDED PROPERTY; POST CLOSING MATTERS
A. Excluded Property
The Loan Parties shall not be obligated to perfect any security interests under
Collateral Documents in the following assets:
1. Motor vehicles covered by certificates of title and aircraft.
2. All leasehold interests in real properties as of the initial Closing Date
(other than 27335 West Eleven Mile Road, Southfield, MI and 64 Fearing
Blvd., Toledo, OH).
3. Romulus, Michigan (Universal Tool & Stamping Company, Inc.) property.
4. Lot 168, Druid Hills, Fairfield Glade, TN (Dura Operating Corp.).
5. 5701 W. Dickman Road, Battle Creek, MI (Excel Industries of Michigan,
Inc.).
6. 944 Florida Mining Blvd., Jacksonville, FL (Dura Operating Corp.)
B. Post-Closing Matters.
Notwithstanding the provisions of Sections 8.1 and 10.14, the Loan Parties need
not (i) complete the confirmations and additional grants of Liens to the Agent
for the benefit of the Lender Parties in intellectual property until April 30,
1999, (ii) complete the grant of Guaranties and pledge of equity interests by
Adwest France S.A. and the unlimited partner of Adwest Heidemann Gruppe GmbH &
Co. KG until Adwest France S.A. and/or Adwest Heidemann GmbH & Co. KG become
Borrowers hereunder in accordance with Section 14.21, or (iii) deliver the
portion of the opinion of their German counsel confirming the continuing
validity of the Guaranties and Collateral Documents of the German Borrower and
Dura Deutschland GmbH until April 15, 1999.
SCHEDULE 11.8
Contingent Obligations
1. Dura has Guaranteed certain indebtedness of Pollone S.A. Industria E
Comercia ("Pollone") in the amount of $6 million.
2. Dura has guaranteed the financing of leased equipment at Thixotech in the
Amount of C$2.2 million (Canadian dollars).
3. Dura, Excel, Adwest and their subsidiaries have executed acquisition
agreements whereby, as sellers, they agreed to indemnify the purchasers
for certain liabilities and, to the extent that they receive claims for
indemnification, they may be liable. In addition, Dun, Excel, Adwest and
their subsidiaries have executed acquisition agreements as buyers whereby
they have relied on indemnification from the sellers for satisfaction of
certain liabilities. Consequently, Dura, Excel, Adwest and their
subsidiaries may be liable to the extent such sellers do not satisfy their
indemnification obligations. See, for example, Acme/Universal Tool &
Stamping Litigation on Schedule 9.5 (Litigation) and Universal
Environmental Matters on Schedule 9.12 (Environmental Matters).
4. In connection with Dura's purchase of GT Automotive. Dura has assumed GT
Automotive's contingent liabilities (if any) under the following:
(i) an "earn-out" to be paid to the prior owner of GT Automotive's
two subsidiaries that were acquired in July 1996, under which
CT Automotive may be required to pay up to CD$600,OO0 in 1997
based on the subsidiaries' 1996 sales and earnings, and up to
CD$1,000,000 in 1998 based on the subsidiaries' 1997 sales and
earnings. It is our understanding that the CD$600,000 was
earned in 1997 but no payment has been made yet because such
amount is not required to be paid until the prior owner
satisfies its obligations to complete environmental clean-up
of one of the sites previously owned by the prior owner; and
5. On November 24, 1998, Dura was notified by Ford Motor Company of an
alleged failure of one of Dura's cables used to control the speed control
unit on certain of Ford's vehicles. The alleged failure was discovered by
Ford during an unrelated testing procedure and has not as of this date, to
Dura's knowledge, been reported to Dura or Ford by any consumers. Dura and
Ford instituted changes to the design of the cable on December 1, 1998
that eliminated this condition.
During March 1999, Dura and Ford completed an assessment of the
vehicles effected by this matter, which included the Mustang,
Ranger, Explorer and the P131 and F53 platforms. Dura is currently
in discussions with Ford regarding this issue and believes it to be
likely that a recall of the effected vehicles will be instituted to
inspect the affected
cables, with the replacement of those which exhibit the problematic
conditions. Dura believes that it is only partially culpable for the
condition which led to the alleged failure and, as a result, will
not be responsible for the full cost of any recall action which
might be undertaken. The cost of such a recall action would be
mitigated by the expectation that only a portion of the cables in
question will be effected by the condition. In addition, in Dura's
past experience, only a portion of the effected vehicles will be
presented as a result of the recall. Dun has made an offer to Ford
to share the costs of any recall action up to a maximum contribution
of $5 million.
6. See contingent liability regarding item 14 on the Litigation Schedule and
item 3 on the Environmental Matters Schedule.
2
Schedule 9.16
Subsidiaries and Minority Interests
Part A
See the attached corporate chart. All entities are 100% owned unless otherwise
specified.
Part B
See Schedule 11.4(J), Existing Investments, for investments in other entities.
Schedule 9.12
Environmental Matters
1. Mancelona, Michigan Groundwater Contamination. Pursuant to requests from
the Michigan Department of Environmental Quality ("MDEQ"), DASI and Wickes
Manufacturing Company ("Wickes") have been conducting environmental
investigations at and around DASI's Mancelona, Michigan facility (which
DASI acquired from Wickes in 1990). The investigations have detected
trichloroethylene ("TCE") in groundwater at the facility and offsite
locations. DASI does not believe it used TCE since it acquired the
Mancelona facility, although TCE may have been used by prior operators.
DASI has arranged and paid for the sampling of a number of offsite
residential drinking water wells and for the replacement of wells found to
contain TCE above drinking water standards. Sampling of residential wells,
and replacement of such wells when necessary, will continue. In March
1998, a ski resort in the vicinity wrote to DASI asserting that DASI is
liable for the cost of installing a water supply system assertedly
attributable to the possible future presence in groundwater of TCE. DASI
responded with a letter denying all liability. DASI is seeking a
negotiated resolution of the ski resort's potential claims. In December
1998, the ski resort orally renewed its threat to file suit if an
agreement could not be reached. DASI may incur additional costs to further
investigate, monitor or remediate the contamination, or to provide
alternative drinking water supplies.
The Mancelona groundwater contamination matter is subject to an indemnity
from Wickes. In connection with DASI's acquisition of certain assets from
Wickes in 1990, and subject to a $750,000 basket (which has been reached)
up to a $2.5 million cap, Wickes agreed to indemnify DASI with respect to
certain environmental liabilities associated with Wickes' operation of the
subject facilities. (DASI is obligated to indemnify Wickes with respect to
such liabilities above the $2.5 million cap.) Wickes has acknowledged that
DASI made a timely and adequate claim for indemnification with respect to
the Mancelona matter, and has been paying (subject to a reservation of
rights) indemnification claims relating to the Mancelona matter that
exceed the $750,000 basket.
2. Main Street Well Field CERCLA Site, Elkhart, Indiana. Excel was named a
PRP at this site. All claims against Excel relating to this Site either
have been formally resolved or have been barred by the contribution
protection provisions of the partial consent decree entered by the Court
on June 9, 1998. Under the settlement agreements, Excel has continuing
payment obligation for operation and maintenance of a groundwater
treatment system and for a soil vapor extraction system that is now
underway. These obligations may continue indefinitely. The costs to
operate these systems is about $35,000 to $50,000 per year. In addition to
these payouts, Excel expects to receive certain payments related to the
site. Excel has reached settlements in principle of its claims against
Babcock & Wilcox Company, Tecumseh Products Company, and Trinity
Industries, Inc.,
under which Excel would receive a total of $170,000, subject to certain
contingencies. These settlements are awaiting court approval.
3. Universal Environmental Matters. In March 1998, DASI acquired Universal
Tool & Stamping Co., Inc. ("Universal"). The sellers agreed to indemnify
DASI for environmental liabilities arising from the operation of the
acquired facilities prior to the acquisition. Following the acquisition,
pursuant to the indemnity, Universal continued to address certain
environmental concerns, including the remediation of TCE-contaminated soil
at the Butler, Indiana facility. In September 1998, the sellers filed for
reorganization under the federal bankruptcy laws. The sellers appear to
have ceased performing its obligations under the indemnity. In March 1999,
the sellers requested bankruptcy court approval to reject their
contractual indemnity obligations to DASI. DASI is evaluating the request.
4. Trident Environmental Matters. On April 30, 1998, DASI acquired Trident
Automotive plc ("Trident"). In connection with a prior acquisition of
Trident, Phase I environmental assessments were performed at Trident's
major facilities. The assessment performed at the Kentwood, Michigan
facility leased by Trident from FKI, indicated that this facility has
chromium contamination of soil and groundwater that is believed to have
resulted from leakage from plating operations in the 1970s. FKI has been
performing remediation of chromium contamination in site groundwater under
the supervision of MDEQ and is proposing to install an expanded and
upgraded groundwater containment system at the Kentwood facility. Remedial
activities associated with the chromium contamination have been ongoing
for approximately 15 years, and it is anticipated that such activities
will continue.
Under the terms of the Kentwood lease, FKI will be responsible for capital
expenditures for certain agreed improvements to the groundwater
containments system and Trident will pay the annual costs of operating and
monitoring that system. In addition, the Kentwood lease provides that FKI
will be solely responsible for the costs of remediation for any
contamination by all hazardous substances that FKI caused. Trident, in
turn, will be solely responsible for the costs of remediation for any
contamination by all hazardous substances that it causes subsequent to the
FKI Acquisition. If, however, it cannot be determined whether FKI or
Trident caused such contamination, Trident and FKI will jointly share such
remediation, in accordance with a formula contained in the lease. The
Kentwood lease provides that Trident's remediation responsibility for such
joint remedial efforts will be capped at $3.0 million for the first seven
and one-half years and $5.0 million for the balance of the lease term.
Under the lease, FKI is responsible for such joint remediation costs in
excess of these caps.
2
5. Former Keiper Recaro Facility, Battle Creek, Michigan. As part of the
acquisition of Atwood, Excel acquired the former Keiper Recaro facility,
located in Battle Creek, Michigan. Keiper Recaro had previously agreed to
remediate contamination at the facility emanating from a former
underground storage tank. Atwood's former owner, Anderson Industries,
Inc., has guaranteed Keiper Recaro's performance. Currently, there is a
disagreement between Excel and Keiper Recaro regarding the scope of the
remedy. Keiper Recaro has advocated a natural attenuation action remedy
coupled with a deed restriction. Excel is insisting on an active
remediation, which would cost approximately $90,000 to implement. The
parties are negotiating a settlement of this matter.
6. Fulton, Kentucky Former Underground Storage Tanks. Nine underground
storage tanks ("USTs") were removed from the Fulton, Kentucky site in 1984
by Sherwin Williams, a previous owner. Subsequent soil and ground water
sampling demonstrated the presence of various solvents in surficial soils
and shallow ground water (both the surficial and deeper aquifers). Ford
Motor Company, another previous owner, voluntarily conducted in-situ air
sparging with vacuum extraction between 1993 and 1996 to remediate the
site, but this was reportedly unsuccessful. Ford now plans to excavate
approximately 1,300 cubic yards of contaminated soils and 70,000 gallons
of extractable ground water. Ford incurred costs of approximately $350,000
in the unsuccessful in-situ remediation effort. Proposed removal costs are
projected to be $400,000. Excel does not expect to incur any of these
costs.
7. Salt Lake City, Utah, Low Level Contamination. Historical site activities
conducted at the Salt Lake City Operations and Distribution facilities,
included the use of these properties by the U.S. Government for military
purposes, which included munitions manufacturing. Low-level solvent
contamination has been detected in on-site ground water in the past and
may still be present on-site. Detected levels were below Utah action
levels for ground water cleanup.
8. Lagrange, Indiana, Potential for Solvent Contamination from If Solvent was
Discharged to the Former Septic System. Three 1,500-gallon septic tanks
and an associated leach field operated on the south side of the Lagrange,
Indiana facility from the early 1960s until 1989. Trichloroethylene (TCE)
has been used at this facility. If the TCE was discharged to the septic
system, there is a possibility of subsurface contamination. Several
factors that appear to mitigate the potential for ground water
contamination: 1) the former septic system was constructed in shallow
soils and not within the deeper potable aquifer; 2) there is a clay
confining layer between shallow ground water and the deeper potable
aquifer; 3) no contamination has been discovered in the on-site well,
which is sampled quarterly; and 4) there have been no reports of ground
water contamination in ground water wells on neighboring properties.
3
9. West Union, Iowa, Wastewater Pretreatment System Upgrade. This facility
installed both a microfiltration system and additional pretreatment
equipment within the last two years. Although the facility is in
compliance with its current wastewater discharge permit, the facility
intends to instal a clarifier and polishing filter system to replace the
microfiltration system. This is being done for ease of operation rather
than any anticipated regulatory requirements. The cost for the new
equipment is projected to be $59,000.
10. DASI, Excel, or Atwood has been named a potentially responsible party at
the following waste disposal sites.
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Site Description
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Dura Avenue In October 1996, DASI received notice that the City of
Landfill, Toledo, Toledo, plaintiff in the lawsuit City of Toledo v.
Ohio Allied Signal Inc., et al., filed a motion to file an
amended complaint naming DASI as a defendant. The
lawsuit related to cleanup of the Dura Avenue
Landfill. The complaint was never served on DASI. On
January 26, 1998, the City of Toledo moved for leave
to file a Fifth Amended Complaint which no longer
named DASI as a defendant. This matter is subject to
the indemnity from Wickes described in item 1, above.
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Stickney In 1994, DASI received a general notice of liability
Avenue/Tyler from EPA with respect to potential Superfund liability
Street Dump, relating to Stickney Avenue/Tyler Street Dump site.
Toledo, Ohio DASI responded denying any involvement with the site.
DASI has heard nothing further from EPA or any other
entity involved at the site. In January 1998, the U.S.
Department of Justice announced a settlement with
several PRPs providing for cleanup and reimbursement
of EPA's past costs. No agency or private entity has
sought DASI's involvement in the settlement. This
matter is subject to the indemnity from Wickes
described in item 1, above.
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King Road In April 1998, DASI received notice from Lucas County,
Landfill, Lucas Ohio asserting that DASI was one of more than 60
County, Ohio entities with potential liability under CERCLA with
respect to the King Road Landfill. DASI contacted the
County's attorney and denied all liability. The County
provided witness statements concerning disposal before
DASI was incorporated. In January1999, DASI was served
with a complaint filed by Lucas County naming DASI and
approximately 60 other companies seeking cost recovery
and a declaration of liability under CERCLA and on
common law grounds. Correspondence accompanying the
complaint mentioned a possible $18 million cleanup. A
PRP group has formed and intends to seek a less costly
cleanup. The litigation is currently stayed. There is
no volumetric information or ranking. DASI will
continue to deny liability.
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4
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MIG/Dewane In April 1996, Excel acquired all of the outstanding
Landfill; common shares of Anderson Industries, Inc.
Belvedere, ("Anderson"), a holding company whose main asset is
Illinois Atwood Industries, Inc. ("Atwood"). Atwood was named a
PRP at the MIG/Dewane Landfill. In connection with a
previous de minimis buyout settlement offer, EPA
assigned Atwood a liability share of $134,000 based
upon 0.5% of the total volume of waste at the site.
Because this evaluation was based upon volume of
ordinary plant trash, rather than hazardous substance
content, Atwood rejected EPA's cost allocation and
made a counter-offer which EPA rejected. Subsequently,
in litigation among groups of PRPs, the court awarded
a smaller-than expected share to the site owners and
operators, leaving a larger-than-expected share for
"generator" parties such as Atwood. It is possible
this could result in eventual Atwood liability of
double or more the amount of EPA's previous buyout
offer.
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Byron-Salvage Atwood was named a PRP at the Byron Salvage landfill.
Landfill, Ogle Atwood has entered Decree, Atwood paid $129,000 to EPA
County, Illinois on January 8, into a Consent Decree with EPA for past
cleanup costs at the site. The Court 1997 as its share
of past response costs. This approved the Consent
Decree on December 9, 1996. Pursuant to the Consent
amount was 1.68% of the total paid by the settling
PRPs. Atwood's insurer, Liberty Mutual, paid $100,000
of the $129,000 settlement. EPA is still working on
the final remedy at the site. EPA estimates that the
proposed remedy will cost approximately $5.7 million.
EPA's remedy has been the subject of continued
negotiation with PRPs, and may be challenged in court.
Atwood's percentage of the prior settlement is not
binding as to future liability at the site, and Atwood
could be required to pay a smaller share or, in a
worst case, a significantly larger share of future
cleanup costs.
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IPC/Roto Rooter, Atwood was named a PRP at the IPC/Rotor Rooter site.
Rockford, Illinois The Illinois Attorney was not sued, but elected to
accept and has paid General's Office sued a number of
PRPs at the site to require cleanup. Atwood a de
minimis settlement of $9,000 for costs associated with
initial site cleanup, investigation and final remedy
selection. This was based on a 0.2% percentage share.
The cost options for the remedy as described in the
feasibility study range from $1.4 million to $3.7
million. Given Atwood's small percentage share in the
prior settlement, Atwood's remaining payments at the
site should be in the approximate range of $10,000 or
less. Atwood will likely receive a settlement offer
sometime in 1999.
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Ekberg Park, IPC, operator of the IPC/Roto Rooter site, has been
Rockford, Illinois named as a major PRP at the Ekberg Park or Area 7
portion of the Southeast Rockford site. Therefore, the
Illinois Environmental Protection Agency ("IEPA") has
indicated its intent to pursue IPC/Roto Rooter Site
PRPs, such as Atwood, as PRPs at Ekberg Park. Atwood's
share at IPC is de minimis, and should be even smaller
at Ekberg Park. Atwood, along with a group of other
PRPs, recently paid a $5,000 settlement to EPA. This
settlement, when finally approved, will essentially
end Atwood's liability at this site.
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Six Oaks Mobile Atwood was named a PRP at the Six Oaks Mobile Home
Home Park, Park. All parties have orally approved the settlement
Pecatonica, Ill. and are awaiting final approval from IEPA. Excel's
payment will be approximately $48,250, plus
outstanding consulting fees.
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5
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Seaboard Excel was named a PRP at this site. This site has over
Chemical Corp. 1000 PRPs. Excel paid $8300 in a first phase
Site, Highpoint, settlement and expects to pay an amount of similar
N.C. magnitude in a future, final settlement. Selection of
a remedy is not expected before the end of 1999, and
design and the beginning implementation of a remedy is
not expected until early 2000.
--------------------------------------------------------------------------
I. Jones Excel was named a PRP at this site. The one remaining
Recycling - technical issue presented by this site is how to
Covington Road address the groundwater contamination there. According
Site, Fort Wayne, to the PRP Group's technical consultant, natural
Indiana attenuation may be a viable option for addressing this
situation. If this option is exercised, the total
costs associated with this site through the end of
1999 is projected to be approximately $500,000; and
the Group has sufficient funds on hand to satisfy
expenses in that amount. The Group is currently
discussing with EPA and IDEM both the technical merits
of the natural attenuation option and the legal
framework in which the site can be handled on that
basis. We expect these issues to be resolved in 1999.
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Himco Dump Excel was named a PRP at this site. EPA's existing ROD
Site, Elkhart, for the site calls for a remedy with a cost of up to
Indiana. $20 million, but the ROD is being reassessed. EPA is
carrying out some limited additional investigation of
this site. If the results of that investigation
confirm the fact that there is no actual health risk
posed by groundwater at the site, EPA may (and is
expected to) amend the record of decision for the
site, so that the only remedy required for the site
would be the installation and maintenance of the fence
around the entire area and deed restrictions on site
and neighboring parties that would preclude the
installation of private wells. If this were to occur,
the total costs to the site would be reduced to
approximately $3 million. EPA may resolve this issue
by the end of 1999. Excel is one of 10-15 PRPs.
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11. Adwest Heidemann Group Facilities. The Adwest Group, plc ("Adwest")
acquired Heidemann in October 1997. The following environmental matters
exist at the Adwest Heidemann facilities in Rotenburg, Kohler and Einbeck,
Germany:
a. Adwest Heidemann, Rotenburg, Germany. The northwestern corner of the
Rotenburg site was historically used to dispose industrial wastes.
Soil and groundwater contamination exists in this area. In addition,
soil and groundwater contamination exists near an old production
building on-site. Soil vapor and groundwater extraction and
treatment systems are operating in these areas of known
contamination. These systems are expected to operate for an
additional 5 to 10 years. The facility is evaluating excavation and
off-site thermal destruction of the wastes in the landfill area as a
remedial alternative. The facility is working with the German
authorities with regard to the on-going remediation.
The facility does not have certain governmental permits for the
operation of its wastewater treatment plant and the discharge of
wastewater from the facility. The
6
facility regularly exceeds certain discharge limitations in its
wastewater discharge. A recent study by a consultant has concluded
that the existing wastewater treatment plant is inadequate and will
need to be upgraded.
b. Adwest Kohler, Lippstadt-Lipperode, Germany. In 1987, chlorinated
hydrocarbon contamination was detected in soil and groundwater at
the "Werk I" Kohler site in Lippstadt. The chlorinated hydrocarbon
contamination was believed to have resulted from the former use of
chlorinated solvents in two degreasing units at the site. The
facility has installed and is operating a soil vapor extraction and
treatment system and has agreed with governmental authorities to
monitor groundwater at the site. In 1995, governmental authorities
allowed the facility to stop continuous operation of the soil vapor
extraction system and switch to an interval mode operation after
concentrations of chlorinated hydrocarbons decreased. The facility
continues to monitor groundwater at regular intervals from several
on-site groundwater monitoring wells.
c. Adwest Heidemann, Einbeck, Germany. Adwest Heidemann owns two
inactive properties in Einbeck, Germany. The "Teichenweg" site was
last used for production purposes by Heidemann in 1981. The
"Hullerser Landstrasse" site was used for production purposes by
Adwest Heidemann until it sold its surface treatment and galvanizing
business (but retained the real property) in June 1998. Adwest
Heidemann maintains an oil storage depot at the Hullerser
Landstrasse site, but leases most of the property to the new owners
of the surface treatment and galvanizing business.
In 1987, soil and groundwater contamination was detected at the
Teichenweg site. Shortly thereafter, Heidemann installed soil vapor
and groundwater extraction systems to remediate the contaminated
soil and groundwater. Due to decreased contaminant concentrations in
soil vapor, governmental authorities have agreed to allow Adwest
Heidemann to shut down the soil vapor extraction system. Consultants
estimate that the groundwater remediation activities may need to
continue for an additional three to ten years.
Soil and groundwater contamination from tetrachloroethene ("PCE")
was detected at the Hullerser Landstrasse site after a spill of PCE
occurred in 1990. Soil vapor and groundwater extraction and
treatment systems were installed at the site and have operated since
that time. Recent monitoring has shown no significant decrease in
groundwater contamination. Concentrations of PCE in soil vapor have
deceased, and governmental authorities are expected to allow the
soil vapor extraction system to be shut down in early 1999.
7
When Adwest acquired the Heidemann operations in Germany in October 1997,
Heidemann posted a DM 5 million (about $2 million) escrow, in part, to
cover claims for environmental liabilities filed by Adwest during an 18
month period following the sale. Adwest has filed environmental claims
totaling DM 2 million (about $800,000) against the escrow for expenses to
remediate soil and groundwater contamination and upgrade the wastewater
treatment plant at the Rotenburg facility and to remediate soil and
groundwater contamination at the Einbeck properties. Adwest expects to
negotiate with Heidemann in the near future regarding the amount of
recovery Adwest will be entitled to for environmental claims under the
1997 agreement with Heidemann.
12. Adwest Gaddesby Lane Site, Rearsby, England. In 1997, in conjunction with
Adwest's acquisition of Rearsby Automotive, Adwest conducted an
environmental assessment of the Rearsby Automotive site in Rearsby,
England. The assessment identified soil and groundwater contamination from
on-site waste disposal. As a result of the findings of the assessment,
Adwest only purchased the Rearsby Automotive business but did not acquire
the Rearsby site. The former owner of Rearsby Automotive retained
ownership of the real property and now leases the site to Adwest. The
former owner has retained full responsibility for contamination identified
at the Rearsby site.
13. Adwest Property, Mawdsley, England. In 1997, Adwest sold Mawdsley's Ltd.,
which operated from an owned site located in Mawdsley, England. Adwest
retained an approximately one-acre parcel in Mawdsley when it sold that
business. The retained parcel was once occupied by a tannery, and
tannery-related contamination (heavy metals) has been detected in the soil
and groundwater at the site. Adwest is currently negotiating to give the
property to a company which plans to redevelop the property for
residential use. Under the terms of the contemplated transaction, the
buyer would agree to conduct any required remediation and agree to
indemnify Adwest for environmental liabilities associated with the site.
14. VOFA Environmental Matters. In January 1997, DASI acquired the stock of
VOFA. A risk assessment conducted in 1993 at the leased VOFA site in
Dusseldorf, Germany detected soil contamination associated with historical
waste burial, tar pits and electroplating operations. No additional
investigation or remediation has been performed to date with regard to
this contamination.
8
SCHEDULE 9.5
Litigation
1. Ford Parking Brake Recall. In late 1994, Ford Motor Company issued a recall
of a series of manual-transmission Ford vehicles (1992-94 Ford F-150, F-250 and
F-350 trucks; 1992-94 Broncos; 1993-94 Rangers and Explorers; and 1993-94 Mazda
B-Series/Navajo vehicles assembled by Ford) to replace self-adjust parking
brakes manufactured by the parking brake division of Orscheln, Dura's
predecessor-in-interest. Ford had been receiving reports and complaints that the
brakes would either "skip through" on apply (i.e., the park brake sector and
teeth would not engage) or "skip out" under load (the park brake sector and pawl
would engage in a "tip on tip" condition and then release). Orscheln developed a
"cam-in" fix that, by forcing the pawl into the teeth, prevented "skip through"
on apply; Orscheln and Dura maintain that the design of the brake has never
permitted alleged "skip outs."
Pursuant to a letter agreement between Dura and Ford executed in August
1994, Dura agreed to reimburse Ford for 50% of the costs incurred by Ford in
satisfying the recall, provided that Dura's share of such costs shall not exceed
$6 million. Dura has contributed the maximum amount of $6 million toward this
recall effort.
Dura is also involved in a product recall relating to the same issue with
respect to the Ford Contour/Mystique in Europe. Dura has agreed to pay 50% of
the costs of that recall not to exceed $1.0 million, which payments totaled $0.4
million as of December 31, 1998.
2. Ford Self-Adjust Parking Brake Claims and Litigation. The type of alleged
failures that prompted the Ford recall have also led to a number of claims and
lawsuits, principally against Ford Motor Company, alleging that the parking
brakes manufactured by Dura's predecessor-in-interest were defective and
unreasonably dangerous. Dura is principally exposed to two types of potential
claims in connection with the self-adjust parking brakes:
(a) claims for "contribution" or "indemnification" asserted by Ford
Motor Company; and/or
(b) claims that are also brought directly against Dura by owners or
injured occupants of Ford vehicles for personal injuries or others
for claims arising out of caused by a "roll away vehicle."
With respect to these claims, Dura's joint venture agreement with Orscheln
specifically provides as follows:
(a) Dura is liable for any such claims arising out of accidents that
take place on or after August 31, 1994, the closing date of the
joint venture agreement; and
(b) Dura will also indemnify Orscheln for any such claims (except for
the Bobb case, which is discussed below) arising out of accidents
that take place prior to August 31, 1994, but only to the extent
that any such losses are not paid by Orscheln's pertinent insurance
policies. Thus, Dura could conceivably be held liable for claims
arising out of pre-closing accidents to the extent that (i) the
claim does not meet Orscheln's deductibles, (ii) Orscheln's policy
limits are exhausted, or (iii) any punitive damages are awarded
against Orscheln in connection with claims arising out of such
accidents if punitive damages are not encompassed by Orscheln's
insurance policies.
3. Product Liability Claims. To date, Dura is aware of two product liability
actions for personal injuries that were brought directly by plaintiffs against
Orscheln (as a co-defendant, together with Ford), claiming that the recall
condition allowed the parking brakes at issue to "skip out," after which the
vehicle was free to roll and subsequently cause physical injuries or property
damage:
(a) Bobb v. Orscheln Co. et al., Case No. 94:CV:1750, U.S. District
Court for the Middle District of Pennsylvania.
(b) White v. Orscheln Co., Case No. CV-N-96-00048-DWH, U.S. District
Court for the District of Nevada.
Orscheln and Ford ultimately settled the Bobb case before it went to trial
for $6.5 million, divided equally. Ford has periodically maintained that Ford
retains the prerogative to seek indemnity from Orscheln for Ford's share of the
settlement payments, a position that Orscheln and its insurers adamantly deny.
The White case proceeded to a jury trial in July 1998. Ford tendered its
defense of the case to the Company; the Company referred this tender to its
carrier, which rejected the tender. Plaintiffs subsequently added Orscheln to
the case as a separate defendant; Orscheln tendered its defense of the case to
Dura, which in turn referred Orscheln's tender to Dura's carrier. The interests
of Dura and Orscheln were defended by counsel retained by Dura's insurance
carrier.
Orscheln and Dura settled out of the case on the last day of trial for
$2.05 million. On the next day, the jury returned a verdict against Ford
awarding $2.3 million in compensatory damages. On the day after that, the jury
awarded plaintiffs $150.88 million in punitive damages against Ford. On December
30, 1998, the trial court granted Ford's motion for a new trial unless
plaintiffs agree to a reduction in the award of punitive damages to $69 million.
Plaintiffs agreed to the lesser amount and Ford has subsequently appealed the
trial court decision.
In addition to the Bobb and White claims, a general contractor filed a
cross-claim against Dura and Orscheln in Simpson v. Reyes, No. EC 014758,
Superior Court for Los Angeles County, California, claiming that Orscheln and
Dura were responsible for alleged defects in the
2
emergency brake system installed in a 1990 Ford F250 pickup truck involved in an
accident. Dura settled this case for $325,000, and the court dismissed the case
in January 1997.
Ford's Claims. Beginning with the Bobb case, Ford has asserted that, in
Ford's opinion, Dura and Orscheln should bear complete liability for all product
liability and other claims arising out of the recall condition in the pertinent
self-adjust parking brakes. At one point, Ford proposed that Dura and Ford
arbitrate a resolution of the parties' respective liability for claims arising
out of the recall condition on an omnibus basis that would address all such
claims. Ford then abandoned that proposal and indicated that, unless Dura would
agree to assume a mutually-acceptable percentage of the responsibility for all
such claims, Ford would pursue legal remedies against Dura to recover the entire
amount of any settlements, verdicts and fees that Ford incurs in defending
against all such claims. Ford reiterated this position in rejecting an offer by
Dura's insurance carrier to assume responsibility for 30% of any such claims.
Ford made no counteroffer and instead revived its proposal for a binding
arbitration. Dura's insurance carrier has indicated that none of Dura's or
Orscheln's insurance carriers are agreeable to Ford's proposal for a mediation,
preferring instead to continue approaching this dispute on a case-by-case basis.
As of December 1995, Ford reported that it had received notice of
approximately 415 claims relating to the recall condition. Based on the
information provided by counsel for Ford, it appears that the great majority of
these claims have been for property damage rarely exceeding the value of the
vehicle in question. Ford also appears to have denied many of the property
damage and personal injury claims.
At last report, Ford had formally tendered its defense of approximately 25
- - 30 claims to Dura and Orscheln; Ford also indicated that it will look to Dura
and Orscheln for indemnification if Ford is ultimately found to be liable and
required to make any payments relating to such claims. Both Dura and Orscheln
have submitted these claims to their primary insurance carrier; Dura has learned
that its insurer and Ford have settled a number of these cases on 50-50 or
comparable bases. Dura has attempted to work together with Ford to address the
claims arising from the self-adjust parking brakes originally manufactured by
the Brake and Cable Business of Orscheln and does not believe that these claims
have adversely affected its business relationship with Ford.
Related Insurance Dispute. In November 1996, Dura was served with a
lawsuit brought by affiliates of AIG (specifically, Commerce & Industry
Insurance Company of Canada and American Home Assurance Company) in Toronto,
Canada seeking a declaratory judgment that the umbrella and excess liability
policies that AIG had issued to Onex do not provide coverage in connection with
allegedly defective self-adjust parking brakes. Commerce & Industry Insurance
Co. of Canada and American Home Assurance Co. v. Onex Corporation, Dura
Automotive Systems, Inc. and Dura Automotive Holding, No. 96-CU-113454, Ontario
Court (General Division). Specially, the AIG policies at issue provided (a) the
first layer of excess coverage (beyond Dura's $3 million primary policy per
year) for claims arising from August 31, 1994 -
3
April 1, 1996 in the amount of $23 million per year, and (b) an additional layer
of excess coverage at $33 - $53 million per year. In principal part, the AIG
affiliates claim that the policies do not provide coverage with respect to
products manufactured prior to August 31, 1994 or liabilities assumed by Dura
pursuant to purchase agreements. The AIG affiliates also claim that the policies
should be voided with respect to self-adjust parking brake claims for inadequate
disclosure at the time the policies were applied for.
Dura and Onex dispute the allegations of the Ontario lawsuit, which
remains in its preliminary stages. Dura has contested the lawsuit, which it
views as part of AIG's well-publicized effort to take hard line on the coverage
of all of its insured. The lawsuit had remained dormant while the parties
awaited a result in the White case, but Dura anticipates that the litigation
will resume in earnest if Dura finds it necessary to submit any parking brake
claims to AIG in the future.
4. Chrysler Parking Brakes. In November 1995, Dura was notified by Chrysler that
it had received reports of a number of parking brake failures in manual
transmission vehicles, particularly in Europe. Dura was recently notified by
Chrysler that Chrysler was conducting a service action with respect to affected
vehicles. In February 1999, Dura contributed financial support of $1,200,000 to
facilitate the service action and Dura does not believe that it will be required
to make any further such contribution.
5. Chrysler Latch Litigation. In June 1996, Dura was served with a complaint
alleging a wrongful death as the result of injuries purportedly caused by a
defectively designed rear latch on a Chrysler mini-van. Estate of Sergio Jiminez
v. Chrysler Corporation et al., No. 296129611, U.S. District Court for the
District of South Carolina. Chrysler and two other suppliers to Chrysler were
also named as defendants in the complaint. Chrysler had assumed the defense of,
and will indemnify Dura with respect to this claim as long as the plaintiffs do
not make any claim alleging a manufacturing defect as it relates to Dura.
Plaintiffs have not advanced any such claim and on August 4, 1997, Dura was
advised of the dismissal of the three parts suppliers. This case was
subsequently settled against Chrysler without recourse to Dura and the other
suppliers. Subsequent complaints (Hill case and Slatcher case) against Dura and
Chrysler were assumed and are being defended by Chrysler who will indemnify Dura
as noted above.
6. Lois Duke. In December 1995, Dura received notice from an attorney for Lois
Duke contending that Ms. Duke suffered unspecified injuries when she was ejected
from the back door of a 1992 Dodge Caravan. Ms. Duke's attorney contends that
the latch for the rear door was defectively manufactured by Dura and requested
that Dura place its insurance carriers on notice of this claim. Dura has placed
its insurer on notice of this claim and has referred this matter to Chrysler for
direct action. Since then, Dura has not received any additional comments from
Chrysler.
4
8. KPI Acquisition. In connection with the acquisition of KPI, Dura has assumed
any liability that proves to be associated with following litigation that has
been disclosed to Dura and has not been previously settled:
o The claims connected with the PRP sites listed at Schedule 6.12 to
the KPI Purchase Agreement, with such liabilities indemnified by
Sparton Corporation ("Sparton") on a limited basis as set forth in
the KPI Purchase Agreement.
Based on the information Dura has received to date, Dura believes that
none of these claims present potential exposure of a material nature.
In addition, since the parties executed the KPI Purchase Agreement,
Sparton has alerted Dura of three additional legal disputes involving the
companies acquired by Dura which have not been settled as of December 31, 1998:
(a) Chrysler has alleged that KPI produced Minivan brake pedals with
improper pedal pad reinforcements, resulting in some failures as a
consequence of pedal pads having bended. Chrysler may be considering
a recall on brakes that have been installed with this condition. No
additional comments have been received from Chrysler on this issue.
(b) KPI has initiated claims against United Technologies Automotive
(UTA) in connection with flaws in solenoids provided by UTA for
automatic transmissions manufactured by KPI for Ford. Dura
understands that the solenoid is responsible for the park/lock
function of the Ford vehicles incorporating this automatic
transmission. Although KPI maintains that this situation is entirely
the responsibility of UTA, there is a possibility that Ford will
maintain that KPI is at fault (consistent with the aggressive
approach that Ford has begun to employ on such issues with its
suppliers). In that event, Sparton has agreed to retain liability
for all damages and expenses consistent with Section 9.10 of the KPI
Purchase Agreement.
(c) Handy & Harmon Specialty Wire Group and Cable Control Technologies
have made claims against Sparton for Payment of approximately
$150,000 on unpaid invoices relating to wire supplied to Sparton by
the claimants. Sparton has indicated that such amounts are not owing
due to charge backs for reworking defective wiring delivered to
Sparton by the claimants. Any liability resulting from such claims
shall be indemnified by Sparton pursuant to and subject to the
limitations set forth in the purchase agreement.
In 1996, Sparton Engineered Products, Inc. filed a breach of contract
action against one of its suppliers entitled Sparton Engineered Products, Inc.
v. Cable Controls Technologies, Inc., No. 1:96CV842, U.S. District Court for the
Western District of Michigan. A default judgment was
5
entered against CCT on January 13, 1997. The trial court denied CCT's motion to
set aside the default judgment and permit CCT to file related counterclaims for
breach of contract and other dealings between Sparton and CCT. The trial court's
decision was recently affirmed by the U.S. Sixth Circuit.
9. Dura Avenue Landfill. In October 1996, Dura received notice that the City of
Toledo, plaintiff in the lawsuit City of Toledo v. Allied Signal, Inc., et al.,
Case No. 3: 90, CV 7140 U.S. District Court of the Northern District of Ohio,
filed a motion to file an amended complaint naming Dura as a defendant. The
lawsuit related to cleanup of Dura Avenue Landfill site in Toledo. The complaint
was never served on Dura. On January 26, 1998, the City of Toledo moved to file
an amended complaint which no longer names Dura as a defendant. Dura expects no
further involvement in the litigation.
10. King Road Landfill. In April 1998, Dura received correspondence from Lucas
County, Ohio and a private law firm asserting that Dura is one of more than 60
entities with potentially liability under CERCLA with respect to the King Road
Landfill in Lucas County Ohio, and stating that the County intends to commence
litigation against the identified entities. Dura denied all liability and asked
to know the County's basis for considering Dura potentially liable. Dura has not
received any information from the County. On January 12, 1999, Dura was served
with a complaint filed by Lucas County naming Dura and 60 other companies
seeking cost recovery and declaration of liability under CERCLA and other common
law grounds. The company will dispute this action.
11. Miscellaneous EEOC Claims. In the normal course of business Dura and its
Subsidiaries may be cited for miscellaneous claims relating to alleged age
discrimination, sex discrimination and wrongful dismissal. Dura estimates its
exposure in such cases to be minimal.
12. TRW Automotive Claim. In February 1996, Dura Shift Systems, Inc. (f/k/a
Tamco Manufacturing) placed a production order with TRW Automotive Electronics
Group, whereby TRW was to develop certain prototype and production tooling for
Dura Shift Systems, Inc. In September 1996, Dura Shift Systems, Inc. informed
TRW that it would no longer require the tooling and instructed TRW to hold up
development and production. In November 1996, TRW wrote a letter to Dura
Automotive Systems, Inc. Column Shifter Operations ("Column Shifters") (f/k/a GT
Automotive Systems) (followed by a letter sent in January 1997 detailing the
purported basis for its monetary claims), claiming $172,807.00 in R&D costs as
damages for Column Shifters' alleged breach of a tooling production contract.
Column Shifters disputed the claim and in April 1997 offered TRW $50,128 to
settle the claim, which TRW refused in May 1997. Column Shifters continues to
dispute the validity of TRW's claim and no further correspondence from TRW has
been received. Regardless of how this claim is resolved, as part of the stock
purchase agreement dated as of August 1, 1997, by and between Dura Shifter
Holding Corp. and the former owners of Column Shifters, such former owners have
agreed to indemnify Dura and Dura Shifter Holding Corp. for any costs or
liabilities incurred as a result of this TRW claim.
6
13. Adell Patent Litigation. In October 1998, Adell Corporation initiated
litigation against Dura alleging infringement of an Adell Patent allegedly
covering a locking device for spare tires. See Adell Corporation v. Dura
Operating Corp. f/k/a Dura Automobile Systems, Inc. and Elco Textron,
3-98CV2384-T, United States District Court for the Northern District of Texas,
Dallas Division. The original complaint named only Dura. In November 1998, Adell
Corporation filed an amended complaint naming Elco Textron as an additional
defendant.
In its amended complaint, Adell claims that Dura and Elco Textron have
infringed U.S. Patent 5,638,711 (the '711 Patent), entitled "Spare Tire Locking
Device." Specifically, Adell claims that Dura and Elco have infringed the '711
Patent through the manufacture and sale to General Motors Corporation of a spare
tire hoist locking device to be used on General Motors 1999 model year trucks.
As of September 1998, Dura no longer sells the components that Adell alleges
infringe the '711 patent.
Dura and Elco Textron filed a motion to dismiss based on lack of personal
jurisdiction and improper venue or in the alternative to transfer the case to
the Eastern District of Michigan. The complaint was dismissed on February 9,
1999.
14. Acme/Universal Tool & Stamping Litigation. Dura acquired Universal Tool &
Stamping Company, Inc. ("Universal") from Acme Packaging Corporation ("Acme")
under a Stock Purchase Agreement executed on March 9, 1998. Acme agreed in the
Stock Purchase Agreement to indemnify Dura for any liability incurred in the
following matters disclosed by Acme as pending against Universal as of the date
of the acquisition:
1. Bradley Wayne Stokes v. Ryan Goolsby, Individually, and as agent for
James Goolsby, James Goolsby, and General Motors Corporation,
Pontiac Division and Chevrolet-Pontiac-GMC and Universal Tool &
Stamping Co., Inc., No. 21,251B, 194th District Court, Taylor
County, Texas
2. William Hayes v. Sayville Ford, Inc. and Universal Tool & Stamping
Company, Inc., No. 18687/92, Supreme Court of the State of New York
County of Suffolk
3. Marc Eric Cojocariu and Kelly Ann Cojocariu v. Ford Motor Company
and Universal Tool & Stamping Company, Inc., No. 02347, Court of
Common Pleas of Philadelphia County, Pennsylvania
4. Rosa Rollins and Walter Rollins, Jr., individually and on behalf of
the Estate of Walter Rollins, III, Deceased v. Chrysler Corporation,
Torrado Town Par Chrysler-Plymouth, Inc. and its successor Torrado
Inc., and R.L. Faubion and Travis H. Cocby, a Partnership, d/b/a/
RIO Auto Sales, No. C-95-1204-D, District Court of Webb County,
Texas
7
It is Dura's understanding that the Hayes and Cojocariu cases have been
settled. Dura is uncertain of the status in the bankruptcy of any amounts paid
by Acme to settle these cases. The Stokes and Rollins cases remain pending.
Stokes and Rollins are both products liability actions alleging design defects
and failure to warn with respect to certain car jacks manufactured by Universal
before the Stock Purchase Agreement was executed. Both Stokes and Rollins may be
subject to mediation or settlement in the near future.
On September 28, 1998, Acme filed a voluntary petition for reorganization
under Chapter 11 of the federal bankruptcy laws. In re: Acme Metals
Incorporated, Acme Steel Company, Acme Packaging Company, Alpha Tube
Corporation, Alabama Metallurgical Corporation and Acme Steel Company,
International, Inc., No. 98-2179, United States Bankruptcy Court for the
District of Delaware.
Until recently, Acme had been defending the Stokes and Rollins matters
under an order from the bankruptcy court permitting continued payments to
certain professionals. On March 1, 1999, however, Acme filed a motion in the
bankruptcy court to reject the Stock Purchase Agreement, including its indemnity
provisions, as an executory contract. Dura anticipates that it will take over
the defense of Universal in Stokes and Rollins and that it will seek
reimbursement from Acme for defense costs and any liability, subject to the
bankruptcy.
15. Miscellaneous Contract Disputes. In the normal course of business, Dura and
its Subsidiaries may be cited for miscellaneous claims relating to contract
disputes. Such claims are aggressively pursued and either dismissed or settled.
Dura estimates its exposure in such cases to be minimal.
16. Trident Litigation. In April 1998, Dura acquired Trident Automotive plc and
has assumed certain liabilities associated with various contract disputes. Dura
has disposed several claims and estimates the remaining exposure to be minimal.
Notice has been received from Toyota Motor Manufacturing Co. seeking
indemnification for patent infringement claims made by Turn-Key-Tech. The issue
relates to the design in the manufacturing process. Dura's position is that the
design was directed by Toyota who dictated tooling design and the processing
method. The notice has been forwarded to attorneys for review of patent
documentation.
Dura has received a "Notice of Claim" from Trident predecessor, FKI
Industries, advising the company of a potential tender of a product liability
claim. The notice describes a former employer's workplace injury, allegedly due
to the removal of safety features, which is the basis of a lawsuit against the
machine manufacturer. Such lawsuit, if tendered to FKI Industries, may be
tendered to Dura as successor.
8
17. Excel Litigation. Excel is a party to a number of product liability and
employment law claims in the ordinary course of business. They are not
anticipated to have a material adverse effect either individually or in the
aggregate.
18. Excel Potential Litigation. RVU Limited, an United Kingdom corporation, has
sent a letter to Atwood Mobile Products, a subsidiary of Excel, making claims
allegedly totaling approximately $440,000 relating to the liquidation of Atwood
Mobile Products S.r.L., an Italian limited liability company and former
subsidiary of Excel. Excel has denied any liability.
19. Adwest Litigation. In November, 1996, Adwest sold Field & Grant and Spectar
Switchgear. A lawsuit was filed against Adwest for breach of warranties in
connection with the sale of these businesses. In February, 1999, Adwest received
a re-issued writ indicating a claim for between Li.700,000 and Li.1,000,000.
Adwest estimates the liability between Li.200,000 and Li.300,000. Adwest
believes the claim relates to the estimated and warranted amounts of debt and
creditors with respect to the businesses sold.
20. Adwest Tax Litigation. The German authorities conducted a tax audit which
identified a number of potential liabilities. The maximum tax liability is DM3.8
million, which includes interest. This liability will be satisfied by drawing
against an escrow account of DM5.0 million.
21. Please see the attached chart for additional Excel litigation matters.
9
EXCEL OPEN CLAIMS
- ------------------------------------------------------------------------------------------------------------------------------------
CLAIMANT/CASE
NUMBER DESCRIPTION STATUS
- ------------------------------------------------------------------------------------------------------------------------------------
Marina Bauer v. Atwood/Excel has not been named as defendant. Atwood Automotive Atwood produced documents in
General Motors (Battle Creek) supplied a seat recliner mechanism to Johnson response to a Non-party
Control for inclusion into seat assembly for GM. Plaintiffs Document Subpoena received
Zurich #9010065669 alleged seat support broke causing the 1991 Safari mini-van to July 1998.
Date opened: 1998 crash. Seat allegedly had been recalled by GM and repaired by
Incident Date: 7/10/94 auto dealer prior to incident.
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
Juanita Kavanagh and Gerald Juanita Kavanagh was operating a bus and struck uneven pavement Attempting to identify seat
Kavanagh v. Keiper Recaro, and alleges that bus seat collapsed causing her injuries. Unknown assembly to determine if any
Atwood Automotive if seat or mounting pedestal collapsed. exposure exists.
Zurich #9530029521
Date opened: 1998
Incident Date: 9/19/96
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
Ingrid Canouse v. Plaintiff was operating a bus and struck uneven pavement which Attempting to identify seat
Keiper Recaro and Atwood reportedly caused seat to collapse. assembly to determine if any
Automotive exposure exists.
Zurich #9080020955
Date opened: 1/15/97
Incident Date: 1/26/97
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
Luke Loggins et al. v. Minor plaintiff, 3 years old, stuck finger into seat assembly Discovery process underway.
General Motors, et al. (and reportedly into hole in the recliner mechanism) of a 1993
GMC pickup truck. As the seat back was reclined, the child
suffered an amputation of his 5th finger.
Zurich #9080020955
Date opened: 1/15/99
Incident Date: 1/26/97
- ------------------------------------------------------------------------------------------------------------------------------------
CLAIMS -- Ford Warranty - In February 1999, Ford Motor Company notified Excel
that Ford considers Excel to be responsible in part for excessive
ongoing warranty liability attributed to the PN-96 Backlite
assembly. Ford has indicated the value of the claim to be $3.2
million. Excel intends to vigorously contest the claim and facts put
forward by Ford Motor Company.
OPEN CLAIMS: FOURTH QUARTER 1998
ROCKFORD FACILITY
- ------------------------------------------------------------------------------------------------------------------------------------
CLAIMANT/CASE
NUMBER DESCRIPTION STATUS
- ------------------------------------------------------------------------------------------------------------------------------------
Great American Insurance Co. Subrogation claim received from Great American Insurance Co. Investigation on 7/9/97 found
Owners Rental of Phoenix representing Owner's Rental of Phoenix, AZ 1993 water heater intact and not a
Zurich Fleetwood Bounder caught fire and caused damages to their motor source of the motor home
908-0015360 home and two other neighboring homes. fire. August, 1997 sent
(AZ) letter denying claim. 6/98
Date Opened: 5/28/97 Great American attempting to
Accident Date: 3/30/97 have Zurich arbitrate - no
Water Heater G6A-76 authority to do so.
- ------------------------------------------------------------------------------------------------------------------------------------
Groat, Virginia Mrs. Groat and husband were removing Jayco Pop-up camper Requested photos and
Zurich from their truck. She is attaching wheel on to jack. supportive documentation.
980-0005550UR States trailer came off ball and trailer/coupler landed on Received. I have attempted to
(NC) her hand. contact them to do
Date Opened: 7/17/98 inspection. No success.
Accident Date: 2/20/98
Jack - unknown
- ------------------------------------------------------------------------------------------------------------------------------------
Gyles, Michael Complaint that while towing boat, the trailer hit back of Received part. Sent report on
Erie Insurance Group tow vehicle. 10/12/98. Denied claim.
Zurich
953-002976007
(PA)
Date Opened: 11/25/98
Accident Date: 9/20/98
Brake Actuator
P/N 84132
- ------------------------------------------------------------------------------------------------------------------------------------
2
- ------------------------------------------------------------------------------------------------------------------------------------
CLAIMANT/CASE
NUMBER DESCRIPTION STATUS
- ------------------------------------------------------------------------------------------------------------------------------------
State Farm Insurance Brake system on a new Heritage BT22T44 Trailer. Claim states the Nov. 1997 sent letter to
Renlund accident occurred as a result of a defective brake cluster on the State Farm requesting more
Zurich trailer. They claim that the backing plate was bent prior to legible photos and requesting
(UT) accident. product to be sent for
Date Opened: 10/7/97 inspection. 6/22/98 received
Accident Date: 9/26/96 color photos. Question of
Brake causation and chain of
evidence.
- ------------------------------------------------------------------------------------------------------------------------------------
Thorn, Elva & Harold Law firm representing the Thorns in regards to an accident on Received police
Zurich December 1, 1997. The Thorns were driving their vehicle in report/pictures. Sent letter
(MN) Minnesota and an oncoming vehicle (driven by P. Jensen) crossed of notice to preserve
Date Opened: 1/12/98 the median losing their trailer and collided with the front end evidence. Ball came out of
Accident Date: 12/1/97 of the Thorn vehicle causing serious injuries to both of them. receiver and was still in
Coupler coupler when trailer came to
rest. Litigation commenced
against driver of trailer and
owner of the trailer.
Plaintiff has not elected to
pursue a claim against us.
- ------------------------------------------------------------------------------------------------------------------------------------
Wadsworth, George Mr. Wadsworth claims the water heater was leading, resulting in We have had communication
Zurich water damage to his 1988 39 foot Excel Fifth Wheel Trailer. with him and Camping World,
901-0065758 LB the installer of the
(OR) replacement unit. Bob Quincy
Date Opened: 10/6/98 originally did test the unit
Accident Date: 10/11/97 and found no leaks. Product
Water Heater returned.
- ------------------------------------------------------------------------------------------------------------------------------------
3
OPEN CLAIMS: FOURTH QUARTER 1998
GREENBRIER FACILITY
- ------------------------------------------------------------------------------------------------------------------------------------
CLAIMANT/CASE
NUMBER DESCRIPTION STATUS
- ------------------------------------------------------------------------------------------------------------------------------------
Gobeli, Michael Gobeli's attorney sent letter on the minor daughter's behalf, 7/14/98 received demand
Zurich claiming injuries sustained in an accident, which occurred package of $1.5 million
984-0021977 3/10/96. Mr. Gobeli was boiling water on stove. Grate, clip
(FL) supporting cook top "gave out" allowing water to hit child.
Date Opened: 8/7/97
Accident Date: 3/10/96
Wedgewood Range
- ------------------------------------------------------------------------------------------------------------------------------------
Lance Owner of Lance Camper unit turns burner knobs on and explosion Matter has been discussed
Rod Friese occurs. Children hear "Chirping noise" prior to incident. 2 minor with Lance Camper and
Zurich children and 1 adult seriously injured. obtained Fire Marshals report
(WA) - attorney for injured party
Date Opened: 5/20/97 had expert review propane
Accident Date: 4/6/97 system and found no leaks.
Possible Range 6/98 I have heard that action
is being pursued against
Lance.
- ------------------------------------------------------------------------------------------------------------------------------------
Palmer, Wayne While preparing dinner in Palmer's 1997 Mountain AIRE 5th Wheel Mr. Palmer has retained an
Zurich Trailer, a guest walked past the island kitchen stove brushing the attorney. 2/98 talked to
9210019603-001 stove top lid and knocking over a pot of boiling water onto the attorney, Mike Hedges, and
(KS) owners ankle causing 2nd and 3rd degree burns. Requesting medicals he is to initiate settlement
Date Opened: 9/30/97 to be paid. demand package.
Accident Date: 6/28/97
Wedgewood Stove Cover 9/98 received settlement
demand of $75,000. Zurich
places a $21,000 value on
case with a 50% liability.
Requested current photos of
Palmer's injury.
- ------------------------------------------------------------------------------------------------------------------------------------
4
OPEN SUITS: FOURTH QUARTER 1998
ROCKFORD FACILITY
- ------------------------------------------------------------------------------------------------------------------------------------
CLAIMANT/CASE
NUMBER DESCRIPTION STATUS
- ------------------------------------------------------------------------------------------------------------------------------------
Brown, Barbara Plaintiff sustained injuries to her hand while unhitching Atwood has been third party
Zurich a utility trailer. Coupler is alleged defective. into this suit by defendant
923-0038489-001 AA to Z Rental and Equipment
(TX) Sales. Ed Dibbin and George
Date Opened: 11/20/97 Gill performed onsite
Accident Date: 6/20/97 inspection on 2/24/98.
Coupler 80072 Product abused/damaged.
Discovery ongoing. 12/4/98
received word from Carl Green
that we have been non-suited
by AA to Z Rental.
(Dismissal without
prejudice).
- ------------------------------------------------------------------------------------------------------------------------------------
Jimmy Eberhardt Subrogation claim by Foremost Insurance Company is claiming fire Reviewed their expert cause
Foremost Insurance damage to their insures 1989 Winnebago Chieftain Motor Home due and origin report and
Zurich to a water heater. photographs. Sent letter
923-37964 11/3/97 requesting more
(MI) information. 2/17/98 received
Date Opened: 9/12/97 a statement of their insured.
Accident Date: 8/4/97 Everything turned off except
Water Heater refrigerator. We denied
subrogation. 9/8/98 suit
filed for $20566.75. Economic
settlement rejected.
- ------------------------------------------------------------------------------------------------------------------------------------
5
- ------------------------------------------------------------------------------------------------------------------------------------
CLAIMANT/CASE
NUMBER DESCRIPTION STATUS
- ------------------------------------------------------------------------------------------------------------------------------------
Forysth, John Construction piece of equipment utilized a jack on the tongue. 9/14/98 Attorney Bauerle put
Zurich While moving equipment "pin which held the jack in place gave in place by Atwood. 12/8/98
924-0053691 99 way". Tongue fell on foot. George Gill and Ed Dibbin
(Iowa) inspected equipment. Jack is
Date Opened: 8/18/98 an Atwood 500 lb. capacity
Accident Date: 6/11/97 lock pin swivel mount style.
Jack Bolt on bracket bent, not
allowing jack to swivel. Jack
handle functions/caster wheel
ok. Retaining washer has been
welded.
- ------------------------------------------------------------------------------------------------------------------------------------
Golden, Anthony and Frankie Golden was using the jack on a utility trailer when the bolts Answer complaint. Possibly
Zurich attached to it separated from frame-trailer fell on his right bracket and bolts are not
(AK) foot. Complications due to diabetes. available. Trailer
Date Opened: 9/8/98 Manufacturer welded a bracket
Accident Date: 5/11/95 on. Discovery initiated to
Jack Assembly plaintiff.
- ------------------------------------------------------------------------------------------------------------------------------------
LeBlanc 1992 Ford L9000 Totter, pulling trailer. Trailer disengaged, Carson/Insurer seeking
Zurich collided with defendant's vehicle. recovery of $750K. 10/97
(KS) deposition of George Gill and
Date Opened 9/13/96 Ed Dibbin taken. 2/98 Carson
Accident Date: 11/21/95 attorney attacks patent;
Coupler 81911 seeking also sanctions and
motions to compel related to
10/97 depositions. Motion
hearings on June 18, 1998.
Motion taken "under
consideration" by the Judge.
- ------------------------------------------------------------------------------------------------------------------------------------
6
- ------------------------------------------------------------------------------------------------------------------------------------
CLAIMANT/CASE
NUMBER DESCRIPTION STATUS
- ------------------------------------------------------------------------------------------------------------------------------------
Montes, Mereado Trailer disengaged, crossed lane and collided with Montes' vehicle Ed Dibbin & Dr. Blotter made
Zurich full investigation of
951-015918NS product, trailer and accident
(Virgin Islands) scene. No evidence of coupler
Date Opened: 1/3/96 defect. Deposition of Bob
Accident Date: 7/1/93 Nelson taken on July 14,
Coupler 84176 ? 1997. Some follow-up
interrogatories filed by
plaintiff. Waiting for courts
ruling on our jurisdictional
motion.
- ------------------------------------------------------------------------------------------------------------------------------------
Quint, Paul Product has been identified as a jack. The mounting bracket Received and responded to
Zurich location is unknown. Trailer location unknown. Plaintiff did not complaint. Discovery is
974-003050 BF own trailer. We will try to get part sent in for inspection. ongoing. Plaintiffs hired
(MI) expert from Triodyne. He has
Date Opened: 12/8/97 attacked design use of thrust
Accident Date: 8/2/96 ring. We have provided
Jack counter information. Non
binding mediation resulted in
$37,500 for plaintiff. We
rejected. Plaintiff accepted.
- ------------------------------------------------------------------------------------------------------------------------------------
White, Cynthia, et al. Deceased was operating 1981 Ford truck with minor child as Investigation conducted on
Zurich a passenger. A 1968 Chevrolet truck with trailer was approaching September 23, 1997. No
(KY) in opposite lane. Trailer disconnected crossed median and collided product defect found. Made
Date Opened: 5/22/97 with deceased's truck. Safety chains failed. motion for summary judgement
Accident Date: 4/9/96 based on no product defect
Coupler 81911 affidavit. Trail date
indefinitely continued.
Offered $50,000 as a "Cost of
defense" settlement.
Plaintiff's settlement demand
is now $100,000.
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7
OPEN SUITS: FOURTH QUARTER 1998
BETTER PRODUCTS FACILITY
- ------------------------------------------------------------------------------------------------------------------------------------
CLAIMANT/CASE
NUMBER DESCRIPTION STATUS
- ------------------------------------------------------------------------------------------------------------------------------------
Rose, Norma Excel and Atwood entities brought in on third amended complaint. Response to complaint with
Zurich Ford Motor, dealership and conversion company already defendants. General denial and
(TN) Plaintiff fell asleep at wheel of 1993 Ford conversion van, goes affirmative defenses. Motion
Date Opened: 3/4/98 off road, and comes to rest. Claims that impact with ditch caused for summary judgement has
Accident Date: 4/19/96 vehicle to have a severe force transmitted through seat, resulting been filed based on lack of
Sealing System in spine injury. successor liability. Trial
date was set for April, 1999.
Plaintiff filed a non-suit.
May refile in another
jurisdiction. Close 1st
quarter 1999.
- ------------------------------------------------------------------------------------------------------------------------------------
8
OPEN SUITS: FOURTH QUARTER 1998
SALT LAKE FACILITY
- ------------------------------------------------------------------------------------------------------------------------------------
CLAIMANT/CASE
NUMBER DESCRIPTION STATUS
- ------------------------------------------------------------------------------------------------------------------------------------
Sowards, William Subrogation claim brought by State Farm Insurance. They are Atwood completed
State Farm Insurance requesting reimbursement paid to their insured, William Sowards. investigation and analysis on
Associated International They are claiming a crack in the furnace heat exchanger caused the 4/28/97. Attempting to
(IL) fire, excessively damaging the motor home. negotiate reasonable
Date Opened: 1/13/97 settlement. Made final offer
Accident Date: 11/13/96 of $78,000. This was
Furnace 8940 rejected. Suit filed in
Winnebago County.
- ------------------------------------------------------------------------------------------------------------------------------------
Truehart, Paul T. Plaintiff purchased Fleetwood Prowler 22 ft. Travel Trailer on Information that plaintiff
Associated International 5/22/94. On 3/11/95 trailer exploded causing plaintiff injuries. was attempting suicide.
(CA) Approximately ten defendants named. 2/27/97, attended inspection
Date Opened: 5/22/96 with our expert Keith Naeve.
Accident Date: 3/11/95 Furnace is in excellent
Furnace 8520-111 condition. Trailer has been
salvaged. 8/98 we were
granted summary judgement.
11/98 there is a notice of
appeal by plaintiff. Trial
proceeded against Fleetwood
and Dan Gamel.
- ------------------------------------------------------------------------------------------------------------------------------------
9
SCHEDULE 9.7
ERISA
1. Dura Automotive Systems, Inc. Group term Life Insurance and Supplemental
Term Life Insurance Plan(1)
2. Comprehensive Medical, dental and Prescription Drug Plan (Salaried and
Non-Union Hourly)(2)
3. Dura Automotive Systems, Inc. Medical Insurance Plan for Union
Employees(1)
4. Dura Automotive Systems, Inc. Medicare Supplemental Plan; AARP Coverage
for Retired Salaried Employees(2)
5. Medicare Part "B" Reimbursement Plan (Former Toledo UAW Employees)(1)
6. As part of a former shareholder of GEL (Predecessor to Dura Automotive
Column Shifter Operation's (Mr. Cope's) Agreement for Sale of Stock
(1/1/92) and Stock Redemption Agreement (11/1/96), Mr. Cope (who has
retired as an executive) has an individual contract which provides for
post-retirement health benefits and payment of premiums for life insurance
coverage.
7. Trident Automotive Group Medical Plan (stipend available for certain
retirees at Kentwood, Milan, Blytheville and Rochester Hills locations)
8. Excel Industries, Inc. Employee Benefit Master Plan
9. Atwood Industries, Inc. Employee Benefit Plan
- ----------
(1) Includes benefits for employees after retirement or other separation
from service.
(2) Includes benefits for "grand-fathered" employees after retirement
from service.
SCHEDULE 11.4(J)
EXISTING INVESTMENTS
1. Trident holds an approximate 12.66% interest in ACK Controls, Inc., a
joint venture formed by Chuo Spring Company Limited, Kokuku Steel Wire
Limited and Trident, pursuant to the ACK Joint Venture Agreement, dated
October 19, 1989 and as amended in the ACK Joint Venture Restructuring
Agreement dated December 23, 1991.
2. Trident has recently entered into a joint collaboration agreement with
Chuo Spring Company Limited pursuant to which the parties have agreed to
collaborate on certain licensing arrangements on a worldwide basis.
3. Trident holds an approximate 19% interest in ANR S.A., a joint venture
with Neyr S.A. (which holds the remaining 81% interest).
4. Various loans have been made to certain management stockholders of Dura
Automotive Systems for purchase of Class A Common Stock, par value $.01
per share. The amount of such loans is less than $100,000.
5. Dura/Excel do Brazil, LTDA, a Brazilian limited liability company
("Dura/Excel"). Dura owns 50% of the outstanding shares of Dura/Excel and
Excel owns 50% of the outstanding shares of Dura/Excel. Dura/Excel owns
51% of stock of Pollone S.A. Industria E Comercio ("Pollone"). Also, Dura
and Excel collectively hold promissory notes in the amounts of $6,359,000
from Dura/Excel, and $5,736,000 million from Pollone.
6. Dura owns an 19% equity interest in Thixotech Inc. ("Thixotech"). Dura
also holds a C$4 million promissory note from Thixotech which is
convertible into approximately an additional 42% equity interest in
Thixotech.
7. Investments of Excel Industries, Inc.:
a) Dura / Excel do Brazil Ltda. - Ltda. Shares
b) Notes Receivable - Pollone S.A.
c) Notes Receivable - Schade GmbH & Co. KG
8. Atwood Industries has investments in partnership interests in various
limited partnerships. Such interests have a carry book value of $75,000.
SCHEDULE 11.5
INDEBTEDNESS
1. $75,000 Note dated November 9,1990, made by Dura, payable to the City of
Moberly, with an outstanding principal balance of $17,411.35 as of
December 31, 1998. (Expiration date November, 2000)
2. $270,000 Note dated May 22, 1992, made by Dura, payable to the City of
Hannibal and Missouri Department of Economic Development, with an
outstanding principal balance of $179,933.36 as of December 31, 1998.
(Expiration date January, 2005).
3. $270,000 Note dated May 22, 1992, made by Dura, payable to the City of
Hannibal and Missouri Department of Economic Development, with an
outstanding principal balance of $117,287.06 as of December 31, 1998.
(Expiration date August, 2002)
4. Note dated July 1, 1996 in original amount of C$2,100,000, made by Dura,
payable to Nealvest Investments Limited. Outstanding principal and
interest balance of Can.$787,500 as of December 31, 1998 secured by a
Letter of Credit.
5. LETTERS OF CREDIT
(a) To secure payment of workers' compensation losses covered under Self
Insured and Large Deductible Programs for subsidiaries of DASI:
Expiration
Issuing Bank Beneficiary Amount Date*
------------ ----------- ------ -----
Comerica State of Michigan 100,000 11/25/99
(b) Letter of Credit issued under this Agreement to Nealvest Investments
Limited in order to secure the promissory note referenced in
paragraph 4 above.
- ----------
* Automatic renewal unless notified otherwise.
1
(c) Letters of Credit for Excel Industries, Inc.:
Issuing Bank Beneficiary Amount
------------ ----------- ------
Key Bank Bank America Trust & Banking $3,070,000
Grand Cayman, Cayman Islands
Key Bank Continental Casualty Company $1,379,000
Key Bank Hoover Universal, Inc. $ 155,175
6. As of December 31, 1998, DURA Automotive Systems (Europe) GmbH and DURA
Deutschland GmbH have approximately 9,840,000DM (reduced from 26,607,050DM
of indebtedness) outstanding that was assumed when Dura acquired such
entities. See Exhibit A for a breakdown of the loans for DURA Automotive
Systems (Europe) GmbH and DURA Deutschland GmbH.
7. Capitalized lease obligation in the amount of FF 1,432,000 in Le Mans
France where Dura Automotive Systemes S.A. leases a warehouse.
8. See Capital Leases on Exhibit B.
9. Capitalized lease obligation of Dura Automotive Systems Cable Operations,
Inc. in the amount of $26,000 in Kentwood for the climate control system.
10. Customs Bond of Dura Automotive Systems Limited in the amount of $115,000
outstanding in the U.K. with Nat West.
11. Miscellaneous foreign locations capitalized leases less than $350,000
12. Dura Automotive Systems, SA has guaranteed a line of credit of ANR S.A. in
the amount of FF800,000.
13. Note dated September 1993, made by Excel, payable to [Kentucky Economic
Development Financing Authority], with an outstanding balance of $258,750
as of March 6, 1999. (Expiration date September 30, 2003.)
14. $3,000,000 Series A Note, assumed by Excel, payable to U.S. Trust, with an
outstanding balance of $75,000 as of March 6, 1999. (Expiration date June
30, 1999.)
2
15. $4,000,000 Note, made by Atwood Industries, Inc. ("Atwood"), payable to
[Met Life Capital] with an outstanding balance of $2,076,777 as of March
6, 1999. (Expiration date December 31, 2000.)
16. $2,400,000 mortgage, made by Atwood Automotive, Inc., payable to United of
Omaha Life Insurance Company, with an outstanding balance of $1,914,675 as
of March 6, 1999. (Expiration date November 1, 2000.)
17. $4,000,000 Note, made by Atwood, payable to CIT Group/Equipment Financing,
Inc., with an outstanding balance of $830,695 as of March 6, 1999.
(Expiration date May 2000.)
18. $1,000,000 Promissory Note, made by Atwood dated May 1994, payable to
David Stewart, with an outstanding balance of $58,937 as of March 6, 1999.
(Expiration date May 31, 1999.)
19. Obligations of Atwood under a Non-Compete Agreement dated May 1994,
payable to Dave Stewart, with an outstanding balance of $58,937 as of
March 6, 1999. (Expiration date May 31, 1999.)
20. Obligations of Atwood under a Non-Compete Agreement dated February 1997,
payable to Compliance Group, with an outstanding balance of $78,834 as of
March 6, 1999. (Expiration date January 1, 2000.)
21. Schade Indebtedness - As of February 28, 1999, Schade had outstanding
indebtedness of DM94,199,089 with various lenders. See Exhibit C, Schade
Consolidated Debt.
22. $40,000,000 Notes dated March 15, 1995, made by Adwest, payable to
Principle Mutual Life Insurance Co. and Metropolitan Life Insurance
Co./Metropolitan Property and Casualty Insurance Co., with an outstanding
balance of $40,000,000 as of March 8, 1999. (Expiration date March 15,
2005.) An offer to prepay these Notes was made on March 15, 1999, which
requires the payment of a Make-Whole Premium of approximately $3,731,763.
If the offer to prepay is accepted by the holders of the Notes, repayment
will be made on or about April 5, 1999.
23. DM40,000,000 Note dated January 31, 1998, made by Heidemann Gruppe GmbH &
Co., KG, payable to DG Bank, with an outstanding balance of DM40,000,000
as of March 8, 1999. (Expiration date March 30, 2008.)
24. DM2,500,000 Note dated July 1, 1998, made by Adwest Kohler GmbH, payable
to BFG, with an outstanding balance of DM2,500,000 as of March 8, 1999.
(Expiration date June 30, 2000.)
3
25. FF1,000,000 Note, made by Adwest OCI S.A., payable to Bank Provincial de
Loire, with an outstanding balance of FF916,000 as of March 8, 1999.
(Expiration date December 1999.)
26. Notes dated July 1992, made by Adwest Electronics, Inc., payable to Robert
Libby, Raymond Libby, Carl Dawson and Gerald Verhyen, with a cumulative
outstanding balance of $294,000 as of March 8, 1999. (Expiration date
February 2002.)
27. See the indebtedness of Pollone S.A. Industria E Comercio of $3 million,
which is guaranteed by Dura, and is disclosed on Schedule 11.8 (Contingent
Obligations).
4
SCHEDULE 14.2
OFFSHORE AND DOMESTIC LENDING OFFICES,
ADDRESSES FOR NOTICES
DURA AUTOMOTIVE SYSTEMS, INC.
Address: 2791 Research Drive
Rochester Hills, MI 48309
Attention: A. M. Galat
Telephone: (248) 299-7514
Facsimile: (248) 299-7518
DURA OPERATING CORP.
Address: 2791 Research Drive
Rochester Hills, MI 48309
Attention: A. M. Galat
Telephone: (248) 299-7514
Facsimile: (248) 299-7518
DURA AUTOMOTIVE SYSTEMS EUROPE
GmbH
c/o Dura Automotive Systems, Inc.
Address: 2791 Research Drive
Rochester Hills, MI 48309
Attention: A. M. Galat
Telephone: (248) 299-7514
Facsimile: (248) 299-7518
DURA ASIA-PACIFIC PTY LIMITED
ACN 004 884 539
Address: 157 Herald Street
Cheltenham, Victoria,
Australia 3192
Attention: Howard Toomey or David Fraser
Telephone: 613-9559-5202
Facsimile: 613-9555-8706
DURA AUTOMOTIVE SYSTEMS
(CANADA), INC.
Address: 2791 Research Drive
Rochester Hills, MI 48309
Attention: A. M. Galat
Telephone: (248) 299-7514
Facsimile: (248) 299-7518
TRIDENT AUTOMOTIVE PLC
Address: 2791 Research Drive
Rochester Hills, MI 48309
Attention: David Liming
Telephone: (248) 299-7630
Facsimile: (248) 299-7518
DURA AUTOMOTIVE SYSTEMS LIMITED
Address: 2791 Research Drive
Rochester Hills, MI 48309
Attention: David Liming
Phone: (248) 299-7630
Facsimile: (248) 299-7518
SPICEBRIGHT LIMITED
Address: 2791 Research Drive
Rochester Hills, MI 48309
Attention: David Liming
Phone: (248) 299-7630
Facsimile: (248) 299-7518
DURA AUTOMOTIVE SYSTEMS CABLE
OPERATIONS INC.
Address: 2791 Research Drive
Rochester Hills, MI 48309
Attention: David Liming
Telephone: (248) 299-7630
Facsimile: (248) 299-7518
1
DURA AUTOMOTIVE SYSTEMS CABLE
OPERATIONS CANADA, INC.
Address: 2791 Research Drive
Rochester Hills, MI 48309
Attention: David Liming
Telephone: (248) 299-7630
Facsimile: (248) 299-7518
MOBLAN INVESTMENTS B.V.
Address: 2791 Research Drive
Rochester Hills, MI 48309
Attention: David Liming
Telephone: (248) 299-7630
Facsimile: (248) 299-7518
DURA AUTOMOTIVE ACQUISITION
LIMITED
Address: c/o Adwest Automotie Plc
Headly Road East
Woodley
Reading RG5 4SN
England
Attention: David Brooks
Telephone: 44-118-9215219
Facsimile: 44-118-9272772
DURA UK LIMITED
Address: c/o Adwest Automotive Plc
Headly Road East
Woodley
Reading RG5 4SN
England
Attention: David Brooks
Telephone: 44-118-9215219
Facsimile: 44-118-9272772
with a copy to:
Address: 2791 Research Drive
Rochester Hills, MI 48309
Attention: David Liming
Telephone: (248) 299-7630
Facsimile: (248) 299-7518
2
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as Agent
For Notices (other than for Borrowing notices, and
notices of conversion or continuation):
Agency Management Services #10831
1455 Market Street, 12th Floor
San Francisco, CA 94103
Attention: Christine Cordi
Telephone: (415) 436-2790
Facsimile: (415) 436-3425
For Borrowing notices, and notices of conversion
or continuation:
Bank of America National Trust &
Savings Association
1850 Gateway Blvd., 5th Floor
Concord, CA 94520
Attention: Al Johnson
Telephone: (925) 675-8426
Facsimile: (925) 675-8500
Payment instructions for Group Borrowings:
U.S. Dollars: Bank of America NT & SA
Concord, CA
ABA No.: 121-000-358
Account Name: Agency
Administrative Services #5596
Account Number: 12338-17014
Ref: Dura-CHI296
Attn: Sang Lee
Sterling: Bank of America NT & SA
London Branch #6008
SWIFT CODE: BOFAGB22
Account Name: Agency
Administrative Services #5596
Account Number: 600890661010
Ref: Dura-CHI296
Attn: Sang Lee
Deutschemarks: Bank of America NT & SA
Frankfurt Branch #6019
SWIFT CODE: BOFADEFX
Account Name: Agency
Administrative Services #5596
Account Number: 601990661059
Ref: Dura-CHI296
Attn: Sang Lee
French Francs: Bank of America NT & SA
Paris Branch #6010
SWIFT CODE: BOFAFRPP
Account Name: Agency
Administrative Services #5596
Account Number: 60190661024
Ref: Dura-CHI296
Attn: Sang Lee
Canadian
Dollars: Bank of America NT & SA
Toronto, Canada
Toronto Office #5688
SWIFT CODE: BOFACATT
Account Name: Agency
Administrative Services #5596
Account Number: 711465003220
Ref: Dura-CHI296
Attn: Sang Lee
Euro: Bank of America NT & SA
London, US FX No.: 6283
SWIFT CODE: BOFAGB22
Account Name: Agency
Administrative Services #5596
Account Number: 600896283016
Ref: Dura-CHI296
Attn: Sang Lee
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as Issuing Lender
200 West Jackson Blvd., 17th Floor
Chicago, IL 60606
Attention: Gail Miller
Telephone: (312) 923-5924
Facsimile: (312) 987-6828
3
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as Swing Line Lender
and as a Lender
For Notices (other than for Borrowing notices, and notices of conversion or
continuation):
231 South LaSalle Street
Chicago, IL 60697
Attention: Lynn Stetson, Vice President
Telephone: (312) 828-6757
Facsimile: (312) 987-0303
For Borrowing notices, and notices of conversion
or continuation:
200 West Adams Street
Chicago, IL 60606-5208
Attention: Clyde Langham,
Account Admin #4976
Telephone: (312) 828-3873
Facsimile: (312) 974-9626
Notices for European Swing Line fundings:
1, Alie Street
London E1 8DE
Attention: Claire Godley
Telephone: 44-181-313-2472
Facsimile: 44-181-313-2140
Payment instructions for European Swing Line
fundings:
U.S. Dollars: BankAmerica New York
One World Trade Center
New York, NY
ABA #0260-0959-3
Account Name: Bank of
America NT&SA, London
Account No.: 37/60564
Attn: Loan Services
Ref: Trident
Sterling: Bank of America NT&SA,
London
CHAPS code 16-50-50
SWIFT code BOFAGB22
Deutschemarks: Bank of America NT&SA,
Frankfurt
SWIFT code BOFADEFX
Account Bank of America
NT&SA, London
a/c no. 96008057
French Francs: Bank of America NT&SA,
Paris
SWIFT code BOFAFRPP
Account Bank of America
NT&SA, London
a/c no. 96008014
Euro: Bank of America NT&SA,
London
Account: Bank of America
NT&SA, London
BA AUSTRALIA LIMITED
as Australian Lender
Bank of America, Sydney Branch #5201
MLC Centre
19-29 Martin Place
Sydney, NSW 2000
Australia
Attention: Marcelle Khoury
Telephone: 612 9221-4219
Facsimile: 612 9221-5781
Attention: Evelyn Kirk (Credit contact)
U.S. Dollar payment instructions
for the Australian Lender:
Account Name: Bank of America, Australia
Branch, D/F Account
Account Number: 62901 99998
ABA #: 121 000 358
Bank: Bank of America NT & SA
1850 Gateway Blvd., 6th Floor
Concord, California 94502
U.S.A.
4
BANK OF AMERICA CANADA
as Canadian Lender
Bank of America Canada
200 Front Street West
27th Floor
Toronto, Ontario
Canada M5V 3L2
Attention: Nelson Lam (Primary Credit Contact)
Telephone: (416) 349-5496
Facsimile: (416) 349-4283
Attention: R. Hall (Alternate Credit Contact)
Telephone: (416) 349-4008
Facsimile: (416) 349-4283
Attention: Clara McGibbon
(Primary Administration Contact)
Telephone: (416) 349-5484
Facsimile: (416) 349-4282
Attention: Medina Sales De Andrade
(Alternate Administration Contact)
Telephone: (416) 349-5464
Facsimile: (416) 349-4282
Payment instructions:
Canadian Dollars: IIPS - Interbank
International Payment System
Bank of America Canada
200 Front St., West, Suite 2700
Toronto, Att: Loans Dept.
Swift Code: BOFACATT
Transit #01312-241
Acc.# 6504-333
US Dollars: Bank of America NT&SA
1 Trade Centre,
New York, NY, 10048
Swift Code: BOFAUS3N
#026009593
for the account of: Bank of
America Canada
Account #65502-01805
Swift Code: BOFACATT
5
BANKS
ABN AMRO BANK N.V.,
as Co-Agent and Lender
Domestic and Eurodollar Address:
208 South LaSalle, Suite 1500
Chicago, IL 60604-1003
Attention: Credit Administration
Telephone: (312) 992-5110
Facsimile: (312) 992-5111
With a copy to:
ABN AMRO Bank N.V.
135 South LaSalle, Suite 625
Chicago, IL 60603
Attention: David Sagers
Telephone: (312) 904-2854
Facsimile: (312) 606-8425
Loan Administration Contacts:
208 South LaSalle, Suite 1500
Chicago, IL 60604-1003
Attention: Loan Administration
Telephone: (312) 992-5153
Facsimile: (312) 992-5158
Letter of Credit Contacts:
200 West Monroe Street, Suite 1100
Chicago, IL 60606-5002
Attention: Trade Services Department
Telephone: (888) 226-5113
Facsimile: (888) 226-5119
Payment Instructions:
Fees, Interest and Loan Repayments:
ABN AMRO Bank N.V.
New York, NY
ABA# 026009580
F/O ABN AMRO Bank, N.V.
Chicago Branch CPU
Account# 650-001-1789-41
Reference: CPU #00447919,
Dura Operating Corp.
Letters of Credit:
ABN AMRO Bank N.V.
New York, NY
ABA# 026009580
F/O ABN AMRO Bank, N.V.
Chicago Trade Services CPU
Account# 653-001-1738-41
Reference: CPU (Dura Operating Corp.)
BANK BOSTON, N.A.,
as Lender
Domestic and Eurodollar Address:
100 Federal St.
Boston, MA 02110
Credit Contact and Documentation Contact:
100 Federal St.
Boston, MA 02110
Attention: Demetric Duckett, V.P.
Telephone: (617) 434-4957
Facsimile: (617) 434-0816
Backup:
Attention: Jeff Pare
Mail Stop: 01-09-04
Telephone: (617) 434-3325
Facsimile: (617) 434-0816
Operations Contact:
100 Rustcraft Rd.
Dedham, MA 02026
Attention: Angela Moore, Loan
Specialist
Telephone: (781) 467-2292
Facsimile: (781) 467-2151
Foreign Contact:
100 Rustcraft Rd.
Dedham, MA 02026
Attention: Irene Rodriquez
Telephone: (781) 467-2091
Facsimile: (781) 467- 2094
6
Letter of Credit Contact:
100 Federal St.
Boston, MA 02110
Attention: Dawn Trench
Telephone: (617) 434-5074
Facsimile: (617) 434-5414
Payment Instructions:
Lender's Fed Wire Payment:
BankBoston, N.A.
ABA#011000390
Account Name: Dura Operations Corp.
Attention: Commercial Loan Services
Lender's Standby L/C Fed Wire Payment:
BankBoston, N.A.
ABA#011000390
Account Name: Dura Operations Corp.
Attention: Commercial Loan Services
Reference: (L/C Payment)
THE BANK OF NEW YORK,
as Lender
Domestic and Eurodollar Address:
The Bank of New York
One Wall Street
19th Floor
New York, NY 10286
Business/Credit Contact:
Attention: Richard A. Raffetto, Vice
President
Telephone: (212) 635-8044
Facsimile: (212) 635-1208/09
Administrative/Operations Matters Contact:
Attention: Yvonne M. Forbes, Assistant
Treasurer
Telephone: (212) 635-6691
Facsimile: (212) 635-7926
Federal Wire Payment Instructions:
Domestic The Bank of New York
Prime Rate 101 Barclay Street
Funding: New York, NY 10286
ABA No.: 021000018
Commercial Loan
Servicing Department
GLA No.: 111 556
Ref: Borrower's Name (in full)
Specify: i.e., Fees, Interest,
Principal (period covered)
LIBOR The Bank of New York
Funding: 101 Barclay Street
New York, NY 10286
ABA No.: 021000018
Eurodollar/Cayman Funding Area
GLA No.: 111 556
Ref: Borrower's Name (in full)
Specify: i.e., Fees, Interest,
Principal (period covered)
Domestic The Bank of New York
Money 101 Barclay Street
Market's: New York, NY 10286
Prime Rate
Funding: ABA No.: 021000018
Syndication Special Financial
Agencies: Products Department
Letter of The Bank of New York
Credit: 101 Barclay Street
New York, NY 10286
ABA No.: 021000018
Trade Services Department
GLA No.: 111 115
Ref: Borrower's Name
(in full)
Specify: i.e., Fees, Interest,
Principal (period covered)
THE BANK OF NOVA SCOTIA,
as Co-Agent and Lender
7
Domestic and Eurodollar Address:
600 Peachtree St. N.E.
Suite 2700
Atlanta, GA 30308
Credit Contact and Documentation Contact:
181 West Madison Street
Suite 3700
Chicago, IL 60602
Attention: Peter Paolilli, Account Officer
Telephone: (312) 201-4124
Facsimile: (312) 202-4108
E-Mail: ppaolill@scofiabank.com
Operations Contact:
600 Peachtree St. N.E.
Suite 2700
Atlanta, GA 30308
Attention: Jefrey Jones
Loan Operations Officer
Telephone: (404) 877-1562
Facsimile: (404) 888-8998
E-Mail: jefrey_jones@scotiamarkets.com
Letter of Credit Contact:
600 Peachtree St. N.E.
Suite 2700
Atlanta, GA 30308
Attention: Jefrey Jones
Loan Operations Officer
Telephone: (404) 877-1562
Facsimile: (404) 888-8998
E-Mail: jefrey_jones@scotiamarkets.com
Draft Documentation Contact:
181 West Madison Street
Suite 3700
Chicago, IL 60602
Attention: Peter Paolilli, Account Officer
Telephone: (312) 201-4124
Facsimile: (312) 202-4108
E-Mail: ppaolill@scofiabank.com
Payment Instructions:
Lender's Fed Wire Payment:
The Bank of Nova Scotia New York Agency
New York, NY
ABA#026002532
Account #0606634
Account Name: Atlanta Agency
Attention: Jeffrey Jones
BANK OF TOKYO-MITSUBISHI TRUST
COMPANY,
as Lender
Credit Contacts (financial information):
Bank of Tokyo-Mitsubishi Trust Company
1251 Avenue of the Americas, 12th Floor
New York, NY 10020-1104
Attention: Paul P. Malecki, Vice President
Telephone: (212) 782-4343
Facsimile: (212) 782-4981
Operations Contacts (borrowings, paydowns, interest, fees, etc.)
BTM Information Services, Inc.
34 Exchange Place
Harborside Financial Center
Harborside, NJ 07311
Attention: Mr. Rolando Uy
Operations Officer
Telephone: (212) 413-8570
Facsimile: (212) 766-3127
Payment Instructions:
Payment via Fed Wire: U.S. Dollars
Bank of Tokyo-Mitsubishi Trust Company
ABA No.:0260-0968-7
A/C#: 97770477
Attention: Loan Operations Dept.
Reference: Dura Operating Corp.
Payment via Fed Wire: EURO Dollars
8
CHASE MANHATTAN BANK AG,
FRANKFURT, GERMANY
Swift No.: CHASDEFX
A/C#: 623-1600864 in name of Bank of Tokyo-
Mitsubishi Trust Company
Attention: Loan Operations Dept.
Reference: Dura Operating Corp.
BANQUE NATIONALE de PARIS,
as Co-Agent and Lender
Domestic and Eurodollar Address:
209 S. LaSalle Street
Chicago, IL 60604
Credit Contact and Documentation Contact:
209 S. LaSalle Street
Chicago, IL 60604
Attention: Christine Howatt, Vice President
Telephone: (312) 977-1383
Facsimile: (312) 977-1380
Operations Contact:
209 S. LaSalle Street
Chicago, IL 60604
Attention: Tim Alvord, Loan Administrator
Telephone: (312) 977-2250
Facsimile: (312) 977-2234
Letter of Credit Contact:
209 S. LaSalle Street
Chicago, IL 60604
Attention: Jeff Wykowski, AVP
Telephone: (312) 977-2226
Facsimile: (312) 977-1380
Payment Instructions:
Lender's Fed Wire Payment:
Banque Nationale de Paris - New York Branch
New York, NY
ABA# 025007689
Account #14119400189
Banque Nationale de Paris - Chicago
Ref: Dura Operating Corp.
Lender's Standby L/C Fed Wire Payment:
Banque Nationale de Paris - New York Branch
New York, NY
ABA# 025007689
Account #14119400189
9
Banque Nationale de Paris - Chicago
Ref: Dura Operating Corp.
BARCLAYS BANK PLC,
as Co-Agent and Lender
Domestic and Eurodollar Address:
Barclays Bank PLC
222 Broadway
New York, NY 10038
Credit Contact:
Marlene Wechselblatt
Telephone: (212) 412-7642
Facsimile: (212) 412-7590
Operations Contact:
C. Tenn Sing Que
Loan Administrator
Telephone: (212) 412-3728
Facsimile: (212) 412-5306/7/8
Fed Wire Payment Instructions:
Pay to: Barclays Bank Plc
ABA No.: 02-600-2574
Standby L/C Fed Wire Payment Instructions:
Pay to: Barclays Bank Plc
ABA No.: 026 002574
Account No.: 050019104
Attention: C. Tenn Sing Que
BAYERISCHE HYPO-UND VEREINSBANK
AG,
as Lender
Domestic and Eurodollar Address:
New York Branch
150 Est 42nd Street - 30th FL.
New York, NY 10017-4679
Credit Contact:
Attention: Hans Dick, Director
Telephone: (212) 672-5775
Facsimile: (212) 672-5591
10
Backup:
Attention: Steven Simons
Telephone: (212) 672-5461
Facsimile: (212) 672-5591
Operations Contact:
Attention: Steven Simons
Telephone: (212) 672-5461
Facsimile: (212) 672-5591
Alternate Fax: (212) 672-5500
Telex No.: 62850 (UBB)
Payment Instructions: (Eurodollar & domestic)
Federal Reserve Bank, N.Y.
Favor: Bayeriche Vereinsbank AG
ABA: 026 008 808 BAY VEREINS BK
ACCT#: 594 012033 4055 01
ATTN: Loan Servicing Dept.
(for Interest and Commitment fees)
OR:
ATTN: Letter of Credit Dept. (for L/C fees)
REF: Acct. name
BHF-BANK AKTIENGESELLSCHAFT,
as Co-Agent and Lender
Domestic Dollar Lending Office
BHF-BANK Aktiengesellschaft
590 Madison Avenue
New York, NY 10022
Eurodollar Lending Office
BHF Bank Aktiengesellschaft
c/o BHF-BANK Aktiengesellschaft
590 Madison Avenue
New York, NY 10022
Credit Contacts:
Peter Liebman
Telephone: (212) 756-5531
Facsimile: (212) 756-5536
Administrative Contact:
Farah Thoubboron
Telephone: (212) 756-5545
Facsimile: (212) 756-5536
Letter to Credit Contact:
Bob Hyland
Telephone: (212) 756-5592
Facsimile: (212) 756-5536
Payment Instructions:
Bank of New York
One Wall Street
New York, NY 10015
ABA #: 021-000-018
A/C: BHF-BANK Aktiengesellschaft
A/C #: 802-301-4646
Ref: Dura
BW CAPITAL MARKETS, INC.,
as Lender
Domestic and Eurodollar Address:
630 Fifth Avenue
Rockefeller Avenue
Suite 1919
New York, NY 10111
Credit Contact:
Attention: Thomas A. Lowe
Telephone: (212) 218-1804
Facsimile: (212) 218-1810
Attention: Robert B. Herber
Telephone: (212) 218-1805
Facsimile: (212) 218-1810
Payment Instructions:
The Bank of New York
ABA #:021 000 018
11
Acct. #:6301694642
Credit To: BW Capital Markets, Inc.
Attn: Thomas Lowe
Ref: DURA
12
THE CHASE MANHATTAN BANK,
as Co-Agent and Lender
Domestic and Eurodollar address:
Chase Manhattan Bank
270 Park Avenue
New York, NY 10017
Credit Contact:
Andris Kalnins
Vice President
Telephone: (212) 270-5732
Facsimile: (212) 270-1340
Operations Contact:
Lenora Kiernan
1 Chase Plaza
New York, NY 10081
Telephone: (212) 552-7309
Facsimile: (212) 552-5650
L/C Contact:
Rebecca McNally
Assistant Vice President
1 Chase Metrotech Center
Brooklyn, NY
Telephone: (718) 242-3468
Facsimile: (718) 242-6537
Fed Wire Payment Instructions:
Chase Manhattan Bank
ABA No.: 021-000021
Account No.: IDS Department #9420
Account Name: Commercial Loan Operations
Attention: John Knapp
Dura Operating Corp.
Lender's Standby L/C Fed Wire Payment
Instructions:
Chase Manhattan Bank
ABA No.: 021-000021
Account No.: 324-331 754
Account Name: L/C Participation
Attention: Tony Bridglal
13
COMERICA BANK,
as Co-Agent and Lender
Credit Contact:
Daryl R. Krause
Vice President
P.O. Box 75000
Detroit, MI 48275
Telephone: (313) 222-5715
Facsimile: (313) 222-5759
Operations Contact:
Deanna M. Stewart
Customer Service Rep.
P.O. Box 75000
Detroit, MI 48275
Telephone: (313) 222-5627
Facsimile: (313) 222-5759
Fed Wire Payment Instructions:
Comerica Bank
ABA No.: 072-000-096
City/State: Detroit, MI
Account No.: 2521952535
Account Name: Dura Operating/Trident
Attention: Commercial Loan Servicing
CREDIT AGRICOLE INDOSUEZ,
as Lender
Domestic and Eurodollar Address:
55 E. Monroe St.
Suite 4700
Chicago, IL 60603
Credit Contact:
55 E. Monroe St.
Suite 4700
Chicago, IL 60603
Attention: Jerome Leblond, Vice President
Telephone: (312) 917-7569
Facsimile: (312) 372-3724
Telex No.: 190063
Answerback: AGRICO UT
SWIFT: CITIUS33
Operations Contact:
55 E. Monroe St.
Suite 4700
Chicago, IL 60603
Attention: Susan Kolodziey
Administrative Services Unit
Telephone: (312) 917-7560
Facsimile: (312) 372-4421
Telex No.: 190063
Answerback: AGRICO UT
SWIFT: CITIUS33
Payment Instructions for Pounds Sterling:
Wire to: Midland Bank PLC
International Division
London, England
Swift Code: MIDLGB22
BNF/Account Name: BSUIUS33
Acct No.:35208275
Ref.:Customer
Attn: Chicago Branch
DRESDNER BANK AG,
as Co-Agent and Lender
Domestic and Eurodollar Address:
Credit Administration
Dresdner Bank AG
75 Wall Street
New York, NY 10005-2889
Credit Contact:
190 South LaSalle Street
Suite 2700
Chicago, IL 60603
Attention: Mr. Fikret Durmus, Associate
Telephone: (312) 444-1825
Backup:
Attention: Mr. Faraaz Kamran
Telephone: (312) 444-1312
14
Operations Contact:
Credit Administration
Dresdner Bank AG
75 Wall Street
New York, NY 10005-2889
Attention: Maria Pena
Telephone: (212) 429-2677
Facsimile: (212) 429-2130
Backup:
Attention: Lora Lam
Telephone: (212) 429-2288
Payment Instructions:
Via Federal Wire:
Dresdner Bank AG, New York
ABA #026 008 303
FIRST UNION NATIONAL BANK,
as Lender
Domestic Address:
301 S. College Street
Charlotte, NC 28288
Credit Contact:
Attention: Kent Davis, Director
Telephone: (704) 715-1302
Facsimile: (704) 374-4793
Operations Contact:
Attention: Lekeisha Neely, CMSA
Telephone: (704) 374-6145
Facsimile: (704) 374-2802
Payment Instructions:
Via Federal Wire:
First Union National Bank
ABA #:53000219
Acct.#:465906-04566
Account Name: Dura Operating Corp.
Attention: Lekeisha Neely
15
Eurodollar Address:
3 Bishopsgate
London, EC2N3AB
Credit Contact:
Attention: Tom Quigley
Telephone: 011-44-171-621-1477
Facsimile: 011-44-176-929-4644
Operations and Bid Contact:
Attention: Maureen Hart
Telephone: 011-44-171-621-1477
Facsimile: 011-44-176-929-4645
Payment Instructions:
U.S. Dollars: Pay To: First Union Bank
International, New York
Swift Code: PNBPUS3NNYC
Account: First Union National
Bank, London
Account No.: 2000193507214
CHIPS I.D.: 216673
Ref: Loans Admin.Ref.Dura
Operating Corp.
German Marks: Pay to: Jon Berenberg
Gossler &
Co., Hamburg
Swift Code: BEGODEHHXXX
Code: BLZ 201 200 00
Account: First Union National
Bank, London
Account No.: 44368009
Ref: Loans Admin.Ref.Dura
Operating Corp.
French Francs: Pay to: Societe Generale, Paris
Swift Code: SOGEFRPPXXX
Account: First Union National
Bank, London
Account No.: 001011052530
Ref: Loans Admin.Ref.Dura
Operating Corp.
Australian Pay to: Westpac Banking
Dollars: Corporation, Sidney
Swift Code: WPACAU2SXXX
Account: First Union National
Bank, London
Account No.: PNB 0002978
Ref: Loans Admi.Ref.Dura
Operating Corp.
Canadian Pay to: Toronto
Dollars: Dominion Bank, Toronto
Swift Code: TDOMCATTXXX
Account: First Union
National Bank, London
Account No.: 0360-01-2027713
Ref: Loans Admi.Ref.Dura
Operating Corp.
Spanish Pesetas: Pay To: Banco Popular
Espanol, Madrid
Swift Code: POPUESMMXXX
Account: First Union
National Bank, London
Account No.: 6128-26880-2
Ref: Loans Admi.Ref.Dura
Operating Corp.
Pounds Sterling: Pay to: First Union National
Bank, London
Sort Code: 16 56 71
Ref: Loans
Admi.Ref.Dura
Operating Corp.
European ccy
(EURO): Pay to: Lloyds Bank,
London
Swift Code:
LOYDGB2LXXX
Account: First Union
National Bank, London
Account No.: 59023107
Ref: Loans
Admi.Ref.Dura
Operating Corp.
16
FLEET NATIONAL BANK,
as Lender
Domestic Address:
1 Federal Street
Boston, MA 02110
Credit Contact:
Attention: Juan Jeffries, Vice President
Telephone: (617) 346-4953
Facsimile: (617) 346-0585
Backup:
Amy M. Tsokanis
Telephone: (617)346-0399
Facsimile: (617)346-0145
Operations Contact:
Attention: Matthew Correia Loan
Administrator
Telephone: (617) 346-0621
Facsimile: (617) 346-0595
L/C Contact: Matthew Correia
Payment Instructions:
Lender's Fed Wire Payment:
Fleet National Bank
ABA#:011-000-138
Account#:1510351-03156
Attention: Matthew Correia
Lender's Standby L/C Fed Wire Payment
Instructions:
Fleet National Bank
ABA#:011-000-138
Account#:1510351-03156
Attention: Matthew Correia
IKB DEUTSCHE INDUSTRIEBANK AG,
as Lender
Domestic and Eurodollar Addresses:
Luxembourg Branch
c/o International Finance
Wilhelm-Botzkes-Strasse 1, 40474 Dusseldort
P.O. Box 10 11 18, 40002 Dusseldorf
Telephone: +49 211/8221-0
Facsimile: +49 211/8221-2559
Credit Contact:
Attention: Mrs. Maria Bissinger
Telephone: +49 211/8221-4957
Facsimile: +49 211/8221-2957
Operations Contact:
Attention: Mr. Michael Peter
Telephone: +49 211/8221-4275
Facsimile: +49 211/8221-2275
Refinancing/Payments:
Attention: Mr. Fisch
Address: IKB Deutsche Industriebank AG
Luxembourg Branch
2, rue Jean Monnet
L-2180 Luxembourg
Telephone: +352 423777-434
Facsimile: +352 423777-439
Payment Instructions:
Fees and Interest:
Bankers Trust Company
New York, NY
Account#:04-082-832
Chips UID.:245706
Principal:
Bankers Trust Company
New York, NY
Account#:04-082-832
17
Chips UID.:245706
KBC BANK N.V.,
as Lender
Domestic and Eurodollar Addresses:
125 West 55th Street
New York, NY 10019
Credit Contact:
Attention: John Thierfelder, Vice President
Telephone: (212) 541-0727
Facsimile: (212) 541-0793
Operations Contact:
Attention: Lynda Resuma, AT
Telephone: (212) 541-0657
Facsimile: (212) 956-5581
L/C Contact: Lynda Resuma
Payment Instructions:
Lender's Fed Wire Payment:
Bank of New York, New York, NY
ABA#:021-000-018
Account#:802-301-5618
Account Name: KBC Bank NY
Attention: Loan Dept.
Ref.:DURA
Lender's Standby L/C Fed Wire Payment
Instructions:
Bank of New York, New York, NY
ABA#:021-000-018
Account#:802-301-5618
Account Name:KBC Bank NY
Attention: Loan Dept.
Ref.:DURA
KEY BANK NATIONAL ASSOCIATION,
as Lender
Domestic and Eurodollar Addresses:
127 Public Square
Cleveland, OH 44114
Credit and Draft Documentation Contact:
Attention: J.T. Taylor, Vice President
Telephone: (216) 689-3589
Facsimile: (216) 689-4981
Operations and L/C Contact:
Attention: Diane Cox, Administrative
Assistant
Telephone: (216) 689-4450
Facsimile: (216) 689-4981
Payment Instructions:
Lender's Fed Wire Payment:
Key Bank National Association
ABA#:041-001-039
Attention: Commercial Loan Operations
MICHIGAN NATIONAL BANK,
as Lender
Domestic and Eurodollar Addresses:
27777 Inkster Road
Farmington Hills, MI 48333
Credit Contact:
Attention: Annette M. Gordon, Relationship
Manager
Telephone: (248) 473-4337
Facsimile: (248) 473-4345
Operations Contact:
Attention: Jessie Massey, Secretary
Telephone: (248) 473-4379
Facsimile: (248) 473-4345
International/Foreign Currency Contact:
18
Christopher Mayone
Jason Ma
Mail Code: 10-25
Telephone: (248) 473-4357
Facsimile: (248) 473-4310
Payment Instructions:
Lenders' Fed Wire Payment:
Michigan National Bank
ABA#:072-000-805
Account#:115710-917000
Account Name: Ref. Dura Operating Corp.
Attention: Sylvia Mills
NATIONAL CITY BANK,
as Lender
1900 East Ninth Street
Cleveland, OH 44114
Credit and Draft Documentation Contact:
Attention: Matthew R. Klinger, Asst. Vice
President
Address: 20 N. Wacker Drive
Suite 3012
Chicago, IL 60606
Telephone: (312) 739-0953
Facsimile: (312) 240-0301
Operations and L/C Contact:
Attention: Sue Ann Lewalski, Manager
Address: 23000 Mill Creek Blvd.
Highland, Hills, OH 44122
Telephone: (216) 488-7080
Facsimile: (216) 488-7110
Payment Instructions:
Lender's Fed Wire Payment:
National City Bank
ABA#:041-000-124
Account#:151804
Account Name: Commercial Loans Operations
Attention: Commercial Loan Operations
Ref. Dura Operating Corp.
NBD BANK,
as Co-Agent and Lender
Domestic and Eurodollar Address:
611 Woodward Avenue
Detroit, MI 48226
Credit Contact:
Attention: Glenn Currin, Vice President
Telephone: (313) 225-2637
Facsimile: (313) 225-2290
Operations and L/C Contact:
Attention: Pam Sudney, Loan Serv. Assoc.
Telephone: (313) 225-4749
Facsimile: (313) 225-1586
Payment Instructions:
Lender's Fed Wire Payment:
NBD Bank
ABA#: 072-000-326
Account#: 2891000007
Account Name: LS2 Clearing Account
Attention: LSA Group/Ref:DURA
Lender's Standby L/C Fed Wire Payment
Instructions:
NBD Bank
ABA#: 072-000-326
Account#: 2891000007
Account Name: LS2 Clearing Account
Attention: LSA Group/Ref:DURA
U.S. BANK NATIONAL ASSOCIATION,
19
as Co-Agent and Lender
Domestic and Eurodollar Address:
U.S. Bank Place, MPFP0609
601 Second Avenue South
Minneapolis, MN 55402-4302
Credit Contact:
Attention: Robert A. Rosati, Assistant Vice
President
Telephone: (612) 973-0617
Facsimile: (612) 973-0822
Operations and L/C Contact:
Attention: Patricia A. Eells, Commercial
Associate
Telephone: (612) 973-0505
Facsimile: (612) 973-0822
Payment Instructions:
Lender's Fed Wire Payment:
U.S. Bank National Association
ABA#: 091-000-022
Account#: 300-00472160600
Account Name: Commercial Loan Service Center
Attention: Ref. Dura Operating L/A #1735052630
Lender's Standby L/C Fed Wire Payment
Instructions:
U.S. Bank National Association
ABA#: 091-000-022
Account#: 300-00472160600
Account Name: Commercial Loan Service Center
Attention: Ref. Dura Operating L/A #1735052630
US TRUST
as Lender
Domestic and Eurodollar Address:
40 Court Street
Boston, MA 02108
Credit and Draft Documentation Contact:
Attention: Dan Eastman, Vice President
Telephone: (617) 726-7022
Facsimile: (617) 695-4185
Operations and L/C Contact:
Attention: Terri DeMarco, Asst. Vice
President
Telephone: (617) 726-7145
Facsimile: (617) 695-4185
Payment Instructions:
Lender's Fed Wire Payment:
US Trust
ABA#: 011-001-331
Account#: 1499-156208
Account Name: Commercial Loan Wire Acct.
Attention: Kerri Connolly
Ref: Dura Operating Corp.
Lender's Standby L/C Fed Wire Payment
Instructions:
U.S. Trust
ABA#: 011-001-331
Account#: 1499-156208
Account Name: Commercial Loan Wire Acct.
Attention: Kerri Connolly
Ref: Dura Operating Corp.
WEBSTER BANK,
as Lender
Domestic and Eurodollar Address:
145 Bank Street
Waterbury, CT 06720-0191
Credit and Draft Documentation Contact:
Attention: Barbara Hillmeyer, Vice
President
20
Address: 185 Asylum Street
3rd Floor
Hartford, CT 06103
Telephone: (860) 692-1690
Facsimile: (860) 947-1872
Operations Contact:
Attention: Celeste Linardi, Loan
Administrator
Address: 185 Asylum Street
3rd Floor
Hartford, CT 06103
Telephone: (860) 692-1670
Facsimile: (860) 947-1872
L/C Contact: Stephen Lafex
Address: 185 Asylum Street
3rd Floor
Hartford, CT 06103
Telephone: (860) 692-1669
Facsimile: (860) 947-1872
Payment Instructions:
Lender's Fed Wire Payment:
Webster Bank
ABA#: 2111-70101
Account#: 1570000010
Ref: Dura Operating Corp.
21
FUNDS
ALLSTATE INSURANCE COMPANY
as Lender
Legal Name and Address and Eurodollar Lending
Office:
Allstate Insurance Company
3075 Sanders Road, Suite G3A
Northbrook, IL 60062
Attention: Dan Leimbach (Credit Contact)
Telephone: (847) 402-9155
Facsimile: (847) 402-3092
Attention: Mary Counley
(Administrative Contact)
Telephone: (847) 402-7048
Facsimile: (847) 326-5042
Wire Transfer Instructions:
BBK = Harris Trust and Savings Bank ABA
#071000288
BNF = Allstate Insurance Company Collection
Account #168-114-7
ORG = DURA OPERATING CORP. TERM B.
DUE XXXX
OBI = BLS (Enter Private Placement No., if
available)Payment Due Date
(MM/DD/YY) -
P_____ (Enter "P" and amount of
principal being remitted, for example,
P5000000.00) -
I______ (Enter "I" and amount of interest
being remitted, for example, I225000.00)
All notices of payments and written confirmations:
Allstate Insurance Company
Investment Operation - Private Placements
3075 Sanders Road, Suite G4A
Northbrook, IL 60062
Attention: Mary Counley
Telephone: (847) 402-7048
Facsimile: (847) 326-5042
Attention: Gini Diewald
Telephone: (847) 402-2251
Facsimile: (847) 326-5040
Securities to be delivered to:
Citibank, Federal Savings Bank
Citicorp Center
500 West Madison
4th Floor, Zone 6
Chicago, IL 60661
Attention: Ellen Lorden
Safekeeping Account No. 846626
All financial reports, compliance certificates, notice of prepayments and other
written communications:
Allstate Insurance Company
Private Placements Department
3075 Sanders Road, Suite G3A
Northbrook, IL 60062
Attention: Dan Leimbach
Telephone: (847) 402-9155
Facsimile: (847) 402-3092
ALLSTATE LIFE INSURANCE COMPANY
as Lender
Legal Name and Address and Eurodollar Lending
Office:
Allstate Insurance Company
3075 Sanders Road, Suite G3A
Northbrook, IL 60062
Attention: Dan Leimbach (Credit Contact)
Telephone: (847) 402-9155
Facsimile: (847) 402-3092
Attention: Mary Counley
(Administrative Contact)
Telephone: (847) 402-7048
Facsimile: (847) 326-5042
Wire Transfer Instructions:
BBK = Harris Trust and Savings Bank ABA
#071000288
22
BNF = Allstate Life Insurance Company
Collection Account #168-117-0
ORG = DURA OPERATING CORP. TERM
B. DUE XXXX
OBI = BLS (Enter Private Placement No., if available) Payment Due Date
(MM/DD/YY) - P_____ (Enter "P" and amount of principal being remitted,
for example,
P5000000.00) -
I______ (Enter "I" and amount of interest
being remitted, for example, I225000.00)
All notices of payments and written confirmations:
Allstate Life Insurance Company
Investment Operation - Private Placements
3075 Sanders Road, Suite G4A
Northbrook, IL 60062
Attention: Mary Counley
Telephone: (847) 402-7048
Facsimile: (847) 326-5042
Attention: Gini Diewald
Telephone: (847) 402-2251
Facsimile: (847) 326-5040
Securities to be delivered to:
Citibank, Federal Savings Bank
Citicorp Center
500 West Madison
4th Floor, Zone 6
Chicago, IL 60661
Attention: Ellen Lorden
Safekeeping Account No. 846627
All financial reports, compliance certificates,
notice of prepayments and other written communications:
Allstate Insurance Company
Private Placements Department
3075 Sanders Road, Suite G3A
Northbrook, IL 60062
Attention: Dan Leimbach
Telephone: (847) 402-9155
Facsimile: (847) 402-3092
OSPREY INVESTMENTS PORTFOLIO
(Citibank Global Asset Management)
as Lender
Domestic and Eurodollar address:
Citibank Global Asset Management
599 Lexington Avenue
26th Floor/Zone 10
New York, NY 10043
Financials, Amendments, etc.:
Daniel Slotkin
Telephone: (212) 559-9191
Facsimile: (212) 793-1871
Payment Information:
State Street Bank & Trust Company
ABA #: 011-000-028
Account #: 1293-630-8
Account of: Corporate Trust Department
Ref: Osprey Investments Portfolio EW1223
Attention: Tony McKendry
Telephone: (617) 664-5139
Facsimile: (617) 664-5291
CYPRESS TREE
Lender: North American Senior Floating
Rate Fund
Domestic and Eurodollar Lending Office:
CypressTree Investment Management
Company, Inc.
125 High Street, 14th Floor
Boston, MA 02110
Phone:
CypressTree
Telephone: (617) 946-0600
Facsimile: (617) 946-5687
23
State Street Bank & Trust
Telephone: (617) 985-5205
Facsimile: (617) 644-5368
Credit Contact
Cathy McDermott
125 High Street
Boston, MA 02110
Telephone: (617) 946-0600
Facsimile: (617) 946-5687
Operations Contact:
Carolyn Carey
125 High Street
Boston, MA 02110
Telephone: (617) 646-0644
Facsimile: (617) 946-5681
State Street Bank & Trust
Corporate Trust Department
Two International Place
Boston, MA 02110
Attn: Rafiq Al-Gailani
Telephone: (617) 664-5719
Facsimile: (617) 664-5368
Wire Instructions:
State Street Bank & Trust Company
ABA# 011-000-028
Corporate Trust Division
DDA Acct #: 1713-515-3
For the Account of: North American Senior
Floating Rate Fund
Attn: Rafiq Al-Gailini
Ref: Deal name/Sender's name
CYPRESS TREE
Lender: Cypress Tree Senior Floating
Rate Fund
Domestic and Eurodollar Lending Office:
CypressTree Investment Management
Company, Inc.
125 High Street, 14th Floor
Boston, MA 02110
Phone:
CypressTree
Telephone: (617) 946-0600
Facsimile: (617) 946-5687
State Street Bank & Trust
Telephone: (617) 985-5205
Facsimile: (617) 644-5366/5367/5368
Credit Contact
Cathy McDermott
125 High Street
Boston, MA 02110
Telephone: (617) 946-0600
Facsimile: (617) 946-5687
Operations Contact:
Carolyn Carey
125 High Street
Boston, MA 02110
Telephone: (617) 646-0644
Facsimile: (617) 946-5681
State Street Bank & Trust
Corporate Trust Department
Two International Place
Boston, MA 02110
Attn: Rafiq Al-Gailani
Telephone: (617) 664-5719
Facsimile: (617) 664-5368
Wire Instructions:
State Street Bank & Trust Company
ABA# 011-000-028
Corporate Trust Division
DDA Acct #: 1713-515-3
FCC No.: 100399-001
For the Account of: CypressTree Senior Floating
Rate Fund
Attn: Rafiq Al-Gailini
Ref: Deal name/Sender's name
CYPRESS TREE
Lender: Cypress Tree Institutional Fund, LLC
24
Domestic and Eurodollar Lending Office:
CypressTree Investment Management
Company, Inc.
125 High Street, 14th Floor
Boston, MA 02110
Phone:
CypressTree
Telephone: (617) 946-0600
Facsimile: (617) 946-5687
State Street Bank & Trust
Telephone: (617) 985-5438/5205
Facsimile: (617) 644-5368
Credit Contact
Cathy McDermott
125 High Street
Boston, MA 02110
Telephone: (617) 946-0600
Facsimile: (617) 946-5687
Operations Contact:
Paul Thompson
125 High Street
Boston, MA 02110
Telephone: (617) 646-0645
Facsimile: (617) 946-5681
State Street Bank & Trust
Corporate Trust Department
Two International Place
Boston, MA 02110
Attn: Rafiq Al-Gailani
Telephone: (617) 664-5719
Facsimile: (617) 664-5368
Wire Instructions:
State Street Bank & Trust Company
ABA# 011-000-028
Corporate Trust Division
DDA Acct #: 1713-515-3
For the Account of: CypressTree Institutional
Fund, LLC
Attn: Rafiq Al-Gailini
Ref: Deal name/Sender's name
CYPRESS TREE
Lender: Cypress Tree Investment Fund, LLC
Domestic and Eurodollar Lending Office:
CypressTree Investment Management
Company, Inc.
125 High Street, 14th Floor
Boston, MA 02110
Phone:
CypressTree
Telephone: (617) 946-0600
Facsimile: (617) 946-5687
State Street Bank & Trust
Telephone: (617) 664-5438/5205
Facsimile: (617) 664-5368
Credit Contact
Cathy McDermott
125 High Street
Boston, MA 02110
Telephone: (617) 946-0600
Facsimile: (617) 946-5687
Operations Contact:
Paul Thompson
125 High Street
Boston, MA 02110
Telephone: (617) 646-0645
Facsimile: (617) 946-5681
25
State Street Bank & Trust
Corporate Trust Department
Two International Place
Boston, MA 02110
Attn: Rafiq Al-Gailani
Telephone: (617) 664-5719
Facsimile: (617) 664-5368
Wire Instructions:
State Street Bank & Trust Company
ABA# 011-000-028
Corporate Trust Division
DDA Acct No.: 1713-515-3
FFC No.: 100399-017
For the Account of: Cypress Tree Investment
Fund, LLC
Attn: Rafiq Al-Gailini
Ref: Deal name/Sender's name
26
FRANKLIN FLOATING RATE TRUST
as Lender
Franklin Floating Rate Trust
777 Mariners Island Boulevard
3rd Floor
San Mateo, CA 94404
Credit Contact:
Madeline Ip
Securities Analyst
Telephone: (650) 312-3865
Facsimile: (650) 312-3346
Alternate Contact:
Chauncey Lufkin
Portfolio Manager
Telephone: (650) 312-3091
Facsimile: (650) 312-3346
Administration Contact:
Matt Gregory
Telephone: (650) 312-3309
Facsimile: (650) 312-3346
Wiring Instructions:
U.S. Dollars: Bank of New York
ABA No.: 021000018 IOC 612
Account No.: 998020
Account Name: Franklin Floating
Rate Trust
Attention: John Dawson
Telephone: (415) 263-2080
Facsimile: (415) 263-2062
FREMONT INVESTMENT & LOAN
as Lender
Credit Contact:
Kannika Viravan
Vice President
2020 Santa Monica Boulevard, Suite 500
Santa Monica, CA 90404
Telephone: (310) 315-3921
Facsimile: (310) 264-7401
Administrative Contact:
Diana Yanni
2020 Santa Monica Boulevard, Suite 500
Santa Monica, CA 90404
Telephone: (310) 315-5537
Facsimile: (310) 264-7401
Fed Wire Instructions:
Name of Bank: Wells Fargo Bank
Address San Francisco CA
ABA #: 121-000-248
Account Name: Fremont Investment & Loan
Account #: 408-181-2604
Reference: Dura
FLOATING RATE PORTFOLIO
as Lender
Notice Instructions:
THE TORONTO DOMINION BANK
909 Fannin Street, Suite 1700
Houston, Texas 77010
Contact: David Parker
Telephone: (713) 653-8248
Facsimile: (713) 653-2647
Custodian (all notices):
AIM Funds - San Francisco
50 California Street, 27th Floor
San Francisco, CA 94111
Attention: David Wang
Telephone: (415) 445-6478
Facsimile: (415) 296-0511
Administration/Operations (copies of all notices):
INVESCO Senior Secured Management, Inc.
1166 Avenue of the Americas
27th Floor
New York, NY 10036
Attention: Peter C. Wollman, Manager
Telephone: (212) 278-9647
Facsimile: (212) 278-9847
27
Credit:
INVESCO Senior Secured Management, Inc.
1166 Avenue of the Americas
27th Floor
New York, NY 10036
Attention: Joseph Rotondo, Vice President
Telephone: (212) 278-9852
Facsimile: (212) 278-9619
GENERAL ELECTRIC CAPITAL
CORPORATION
as Lender
Credit Contact:
William Richardson
GE Capital - Commercial Finance
201 High Ridge Road
Stamford, CT 06927-5100
Telephone: (203) 316-7589
Facsimile: (203) 316-7978
Closing Contact
Tracy Bardos
GE Capital - Commercial Finance
201 High Ridge Road
Stamford, CT 06927-5100
Telephone: (203) 316-7634
Facsimile: (203) 316-7978
Operations Contact:
Renee Martin
GE Capital - Commercial Finance
201 High Ridge Road
Stamford, CT 06927-5100
Telephone: (203) 708-1036
Facsimile: (203) 316-7816
Payment Instructions:
Payment to: Bankers Trust Company
1 Bankers Trust Plaza
New York, NY 10006
ABA #: 021-001-033
Acct. Name: GECC CAF
Depository
Acct #: 50-232-854
Reference: CFN #4175-DURA
Wire Instructions:
State Street Bank & Trust Company, Boston
ABA No.: 011-00-0028
DDA No.: 2565-346-0
Ref: GT Global Floating Rate Fund
ZM64
Attention: Scott Corrick
J.P. MORGAN INVESTMENT
MANAGEMENT INC.
as Lender
Credit Contact:
J.P. Morgan Investment Management
522 Fifth Avenue
New York, NY 10036
Attention: David Ellis
Telephone: (212) 837-5018
Facsimile: (212) 837-2664
Delivery Instructions for Promissory Note:
Bank of New York
One Wall Street
3rd Floor
Window A
New York, NY 10286
JPMIM a/c #189319
Correspondence:
J.P. Morgan Investment Management
522 Fifth Avenue
New York, NY 10036
Attention: Securities Administration
Facsimile: (212) 837-9046
28
Wiring Instructions:
Bk of NYC/CTR/BBK
ABA No.: 021-000-018
IOC 566-Custody
JPMIM Incoming Wire Account
Attention: a/c #188967
Re: Dura
J.P. MORGAN INVESTMENT
MANAGEMENT INC.
as Lender
Credit Contact:
J.P. Morgan Investment Management
522 Fifth Avenue
New York, NY 10036
Attention: David Ellis
Facsimile: (212) 837-2664
Delivery Instructions for Promissory Note:
Bank of New York
One Wall Street
3rd Floor
Window A
New York, NY 10286
JPMIM a/c #189102
Correspondence:
J.P. Morgan Investment Management
522 Fifth Avenue
New York, NY 10036
Attention: Securities Administration
Facsimile: (212) 837-9046
Wiring Instructions:
Bk of NYC/CTR/BBK
ABA No.: 021-000-018
IOC 566-Custody
JPMIM Incoming Wire Account
Attention: a/c #188967
Re: Dura
MASSMUTUAL LIFE INSURANCE CO.
as Lender
Credit Contacts:
Primary:
Thomas Li
Managing Director
1295 State Street
Springfield, MA 01111
Telephone: (413) 744-7727
29
Facsimile: (413) 744-3310
Secondary:
John Wheeler
Managing Director
1295 State Street
Springfield, MA 01111
Telephone: (413) 744-6228
Facsimile: (413) 744-6127
Operations Contacts:
Primary:
Donald Payson
Assistant Investment Analyst
1295 State Street
Springfield, MA 01111
Telephone: (413) 744-3742
Facsimile: (413) 744-7922
Secondary:
Tim Spenser
Relationship Manager
600 Travis, 9th Floor
Houston, TX 77002
Telephone: (713) 216-1237
Facsimile: (713) 216-2101
Wiring Instructions:
MassMutual Life Ins Co.
Chase Manhattan Bank
New York, NY
ABA No.: 021000021
Account: MassMutual Life Ins. Co.
Account No.: 323067697
Ref. RE: Dura Operating Corp.
MERRILL LYNCH
as Lender
Merrill Lynch Senior Floating Rate Fund, Inc.
Primary & Secondary Deal Closings:
Janet S. Hansen
c/o Merrill Lynch Asset Management
800 Scudders Mill Road - Area 1B
Plainsboro, NJ 08536
Telephone: (609) 282-3136
Facsimile: (609) 282-3542
Loan Activity:
Colleen Wade
c/o Merrill Lynch Asset Management
800 Scudders Mill Road - Area 1B
Plainsboro, NJ 08536
Telephone: (609) 282-4165
Facsimile: (609) 282-3542
With a copy to:
James Smith
Merrill Lynch Senior Floating Rate Fund, Inc.
500 College Road-4E
Plainsboro, NJ 08536
Telephone: (609) 282-7706
Facsimile: (609) 282-7616
Wire Instructions:
Bank of New York
ABA #:021-000-018
GLA #: 111-612
Acct. #: 245-215
Account: Merrill Lynch Prime Rate Portfolio
Attention: Judy Wiley
Reference: (insert Borrower's name)
Financials, Amendments, Voting
c/o Merrill Lynch Asset Management
800 Scudders Mill Road - Area 1B
Plainsboro, NJ 08536
Telephone: (609) 282-____
Facsimile: (609) 282-2756/2550
MORGAN STANLEY DEAN WITTER
PRIME INCOME TRUST
as Lender
Domestic Address:
Morgan Stanley Dean Witter Prime Income Trust
c/o Morgan Stanley Dean Witter Advisors Inc.
Two World Trade Center, 72nd Floor
New York, NY 10048
30
Facsimile: (212) 392-5345
Tax ID#: 13-3548050
Primary Credit Contact:
Peter Gewirtz
Telephone: (212) 392-9034
Facsimile: (212) 392-5345
Secondary Credit Contact:
Kevin Egan
Telephone: (212) 392-5845
Facsimile: (212) 392-5345
Administration Contact:
Chris Coleman
Telephone: (212) 392-0539
Facsimile: (212) 392-5345
Payment Instructions:
Name of Bank: Bank of New York
ABA #: 021000018
Morgan Stanley Dean Witter
Prime Income Trust
Account #: 003348
GLA: 111612
Attention: Mutual Funds Reconciliation
Department
NATIONSBANK, N.A.
as Lender
Credit Contact:
NationsBank, N.A.
100 North Tryon Street
7th Floor, NationsBanc Montgomery
Securities LLC
Attention: Ed Hamilton
Telephone: (704) 388-8809
Facsimile: (704) 388-0922
Closing Contact (Assignments):
Attention: Karen D. Roberts
Telephone: (704) 386-5767
Facsimile: (704) 388-0922
Operations Contact:
101 North Tryon Street
15th Floor, NationsBank, N.A.
Charlotte, NC 27255
Attention: Toby Gilbert
Telephone: (704) 386-2596
Facsimile: (704) 409-0151
Wiring Instructions:
NationsBank, N.A.
Attention: Toby Gilbert
ABA No.: 053-000-196
Corporate Credit Services
Account No.: 136621-2250600
Ref: (Name of Credit)
OCTAGON LOAN TRUST
as Lender
Domestic and Eurodollar Address:
Octagon Loan Trust
380 Madison Avenue, 9th Floor
New York, NY 10017
Credit Contact:
Richard W. Stewart
Managing Director
380 Madison Avenue
9th Floor
New York, NY 10017
Telephone: (212) 622-3062
Facsimile: (212) 622-3797
E-mail: richard.stewart@chase.com
Operations Contact:
Anne Chlebnik
State Street Bank and Trust Company
2 International Place
Boston, MA 02110-2804
Telephone: (617) 664-5481
Facsimile: (617) 664-5366
E-mail: achlebni@fmg-statestreet.com
31
Administrative Contact:
Margaret B. Harvey
Vice President
380 Madison Avenue
9th Floor
New York, NY 10017
Telephone: (212) 622-4577
Facsimile: (212) 622-3797
Lender's Fed Wire Payment Instructions
Bank Name: State Street Bank and Trust
Company
ABA #: 0011 00 0028
Account Name: Octagon Loan Trust
Account #: 1043-704-4
Attention: Anne Chlebnik
Reference: Dura Operating Corp.
JACKSON NATIONAL LIFE INSURANCE
COMPANY
as Lender
Original notes:
Northern Trust Company
40 Broad Street
19th Floor
New York, NY 10004
Account No.: 2691241/Jackson National Life
Insurance Company
Attention: Jose Mero
Telephone: (212) 701-7507
Original credit documents:
PPM America, Inc.
225 West Wacker Drive
Suite 1200
Chicago, IL 60606
Attention: Private Placements-Michael DiRe
or Mike King
Telephone: 634-2509/2561
Facsimile: 634-0054
and
Jackson National Life Insurance Co.
225 West Wacker Drive
Suite 1200
Chicago, IL 60606
Attention: JNL Investment Accounting
-Dave Binkley
Facsimile: 634-0906
Payment/Rate notices faxed to Operations
Contact:
PPM America, Inc.
225 West Wacker Drive
Suite 1200
Chicago, IL 60606
Attention: Susan Perrino
Telephone: 634-1205
Facsimile: 634-0054
Northern Trust
801 South Canal
Floor CIN
Chicago, IL 60607
Attention: Tarsa Lewis
Telephone: 444-5754
PINEHURST TRADING, INC.
as Lender
Credit and Closing Contact:
NationsBanc Montgomery Securities LLC
100 North Tryon Street
NC1-007-06-07
Charlotte, NC 28255
Attention: Kelly C. Walker
Telephone: (704) 388-8943
Facsimile: (704) 388-0648
Reference: (Name of Credit)
Opertions Contacts:
NationsBank, N.A.
101 North Tryon Street
NC1-001-15-01
Charlotte, NC 28273
Attention: John W. McGirt
Telephone: (704) 388-1113
Facsimile: (704) 409-0162
or
Attention: Eddie Harmon
Telephone: (704) 386-2004
32
Facsimile: (704) 386-8694
Wiring Instructions:
NationsBank, N.A.
Attention: John W. McGirt
ABA No.: 053-000-196
Corporate Credit Services
Account No.: 1366212250600
Reference: (Name of Credit)
Facsimile: 630-8179
Jackson National Life
225 West Wacker Drive
Suite 1200
Chicago, IL 60606
Attention: Mike Wells
Telephone: 338-5816
Facsimile: 634-0906
Wire payments:
Northern Trust Chgo
ABA No.: 0710-0015-2
Credit Account No.: 5186041000 (General ledger
for all clients of Northern Trust)
For Further Credit to: 26-91241/Jackson National
Life Insurance Company
Ref: (Name of Company) PVTPL, date of
payment, principal and interest breakdown
Attention: Tarsa Lewis
SRF TRADING, INC.
as Lender
Credit Contact:
Stein, Roe & Farnham Incorporated
One South Wacker
33rd Floor
Chicago, IL 60606
Attention: Brian W. Good
Telephone: 368-7644
Facsimile: 368-7857
Documentation Contact:
Stein, Roe & Farnham Incorporated
One South Wacker
33rd Floor
Chicago, IL 60606
Attention: Kathleen A. Zarn
Telephone: 368-8058
Facsimile: 368-7857
Closing Contact:
NationsBanc Montgomery Securities LLC
100 North Tryon Street
NC1-007-06-07
Charlotte, NC 28255
Attention: Kelly C. Walker
Telephone: (704) 388-8943
Facsimile: (704) 388-0648
Operations Contact:
NationsBanc Montgomery Securities LLC
100 North Tryon Street
NC1-001-15-01
Charlotte, NC 28273
Attention: Ryan S. Barclay
Telephone: (704) 386-6391
Facsimile: (704) 409-0165
or
Attention: Margaret J. Rhodes
Telephone: (704) 388-3317
Facsimile: (704) 409-0158
Wiring Instructions:
NationsBank, N.A.
Attention: Ryan S. Barclay
ABA No.: 053-00-196
Corporae Credit Services
Account No.: 1366212250600
Ref: (Name of Credit)
TYLER TRADING, INC.
as Lender
Credit Contacts:
NationsBanc Montgomery Securities LLC
100 North Tryon Street
NC1-007-06-07
33
Charlotte, NC 28255
Attention: Kelly C. Walker
Telephone: (704) 388-8943
Facsimile: (704) 388-0648
Reference: (Name of Credit)
and
First Dominion Capital LLC
1330 Avenue of the Americas
38th Floor
New York, NY 10019
Attention: Charles Riceman
Telephone: (212) 603-8548
Facsimile: (212) 603-8505
Reference: (Name of Credit)
Closing Contact:
NationsBanc Montgomery Securities LLC
100 North Tryon Street
NC1-007-06-07
Charlotte, NC 28255
Attention: Kelly C. Walker
Telephone: (704) 388-8943
Facsimile: (704) 388-0648
Opertions Contacts:
NationsBank, N.A.
101 North Tryon Street
NC1-001-15-01
Charlotte, NC 28273
Attention: John W. McGirt
Telephone: (704) 388-1113
Facsimile: (704) 409-0162
or
Attention: Margaret J. Rhodes
Telephone: (704) 388-3317
Facsimile: (704) 409-0158
Wiring Instructions:
NationsBank, N.A.
Attention: John W. McGirt
ABA No.: 053-000-196
Corporate Credit Services
Account No.: 1366212250600
Reference: (Name of Credit)
UNITED OF OMAHA LIFE INSURANCE
COMPANY
as Lender
All fax, borrowing, rate set and pay down notices should be sent to:
BNY Western Trust Company
700 South Flower Street, Suite 200
Los Angeles, CA 90017
Attn: Carol Grafals
Telephone: (213) 630-6475
Facsimile: (213) 683-1035
and
Trust Company of the West
865 South Figueroa Street, Suite 1080
Los Angeles, CA 90017
Attn: Elaine Nagos
Telephone: (213) 244-0830
Facsimile: (213) 244-0485
With copies to:
Mark L. Gold/Justin Driscoll/Jonathan Insull
TCW Asset Management Company
200 Park Avenue, Suite 2200
New York, NY 10166-0228
Telephone: (212) 771-4000
Facsimile: (212) 771-4159
For Credit Matters:
Mark L. Gold/Justin Driscoll/Jonathan Insull
TCW Asset Management Company
200 Park Avenue, Suite 2200
New York, NY 10166-0228
Telephone: (212) 771-4000
Facsimile: (212) 771-4159
34
All wire payments should be sent to:
The Bank of New York
ABA #: 021-000-018
BNF: IOC 566
BBI: Attn: Purisima Teylan
F/B/O: A/C#: 391675
A/C Name: United of Omaha Life Insurance
Company
Reference: (loan name)
Tax ID #: 47-0322111
TORONTO DOMINION BANK
as Lender
Legal Domestic and Eurodollar Lending Office:
The Toronto-Dominion Bank
909 Fannin
Suite 1700
Houston, TX 77010
Telephone: (713) 653-8200
Facsimile: (713) 951-9921
Swift Address: TDOM US4H
Settlement contacts:
Timothy Zeller
Telephone: (212) 827-7420
Facsimile: (212) 397-2209
Full Money Market Lending Office:
TDSI (USA), Inc.
31 West 52nd Street
21st Floor
New York, NY 10019
Attention: Senior Dealer
Telephone: (212) 468-0400
Facsimile: (212) 974-5283
Telex No.: 177047/TORDOMFXNY
Executed Copies and Administrative/Operational
Communications:
The Toronto-Dominion Bank
909 Fannin
Suite 1700
Houston, TX 77010
Attention: David G. Parker, Manager-Credit
Administration
Telephone: (713) 653-8248
Facsimile: (713) 951-9921
Swift Address: TDOM US4H
Credit Communications:
The Toronto-Dominion Bank
909 Fannin Street
Suite 1700
Houston, TX 77010
Attention: Debbie Greene, Loan
Administration
Telephone: (713) 653-8248
Facsimile: (713) 652-0914
Swift Address: TDOM US33
Other Contact:
Jorge Garcia
Telephone: (713) 653-8242
Payment Instructions:
Bank of America N.A.
Attention: Debbie Greene, Manager-Credit
Administration
Swift Code: (BOFAUS3N)
ABA No.: 026009593
Toronto Dominion Bank Acct. No.: 6550-6-52270
ref: Dura Automotive
TRANSAMERICA INVESTMENT SERVICES
Lender: Transamerica Life Insurance
and Annuity Company
Domestic and Eurodollar Lending Office:
Transamerica Occidental Life Insurance Company
1150 South Olive Street
Suite 2700
Los Angeles, CA 90015
35
Credit Contact:
John M. Casparian
Investment Officer
Transamerica Investment Services
1150 South Olive Street, Suite 2700
Los Angeles, CA 90015
Telephone: (213) 742-3554
Facsimile: (213) 741-7110
Kevin Hickam - Secondary
Assistant Vice President
Telephone: (213) 742-6453
Facsimile: (213) 742-4150
Administrative Contact-Borrowings, Payments,
Interest Rates, etc.
Audrey Charles
Securities Accountant
Transamerica Securities Accounting
1249 South Broadway Street, Suite 532
Los Angeles, CA 90015
Telephone: (213) 742-4822
Facsimile: (213) 741-5654
All Account Statements to:
Transamerica Life Companies
P.O. Box 2101 - Securities Accounting
Los Angeles, CA 90051-0101
Payment Instructions:
Federal Reserve Bank of Boston
Boston Safe Deposit & Trust
Boston, MA
ABA: 011-001-234
DDA: 162299
FFC: Cost Center 4237
Re: Mellon Securities
Transamerica Life Insurance and
Annuity Company
Account Segment: INDEX
Acct. #: TEAF 1506792
Ref: Dura Automotive
Payment by Check:
Mellon Bank
P.O. Box 3197
Pittsburgh, PA 15230-3197
Attn: Bond Interest
Physical Delivery Instructions:
Mellon Securities Trust Co.
120 Broadway Street
13th Floor
New York, NY 10271
Attn: Tony Bello (212) 374-0125
Transamerica Life Insurance and
Annuity Company
Account Segment: FLEX
Acct. #: TRAF 1506792
Ref: Dura Automotive
Additional Information, please contact:
Greg Bauer
Mellon Securities Trust Co.
(412) 236-3817
For Credit Agreement, Note Delivery and
Financial Information:
John M. Casparian
Vice President and Director of Private Placements
Transamerica Investment Services
1150 South Olive Street, Suite 2700
Los Angeles, CA 90015
THE TRAVELERS INSURANCE COMPANY
as Lender
Travelers Investment Group
Legal Name and Address:
The Travelers Insurance Company
1 Tower Square
Securities Department, 10-PB
Hartford, CT 06183-2030
36
Credit & Administration "Daily Operations":
John J. Console
Telephone: (860) 277-0940
Facsimile: (860) 277-2299
Tammy L. Brooks
Telephone: (860) 277-6101
Facsimile: (860) 277-2299
Analysts:
Allen Cantrell
Telephone: (860) 954-2396
Facsimile: (860) 954-5243
Financials:
Allen Cantrell
Telephone: (860) 954-2396
Facsimile: (860) 954-5243
Payment Information:
Chase Manhattan Bank
New York, NY
ABA Number: 021-000-021
THE TRAVELERS INSURANCE COMPANY
as Lender
Travelers Investment Group
Legal Name and Address:
The Travelers Insurance Company
1 Tower Square
Securities Department, 10-PB
Hartford, CT 06183-2030
Corporate Loan Info:
Smith Barney
388 Greenwich Street
22nd Floor
New York, NY 10013
Credit & Administration "Daily Operations":
John J. Console
Telephone: (860) 277-0940
Facsimile: (860) 277-2299
Jeanne Cmarich
Telephone: (212) 816-6607
Facsimile: (212) 816-6344
Analysts:
Allen Cantrell
Telephone: (860) 954-2396
Facsimile: (860) 954-5243
Financials:
Allen Cantrell
Telephone: (860) 954-2396
Facsimile: (860) 954-5243
Barbara Brinn
Telephone: (212) 816-5515
Facsimile: (212) 816-6344
Payment Information:
PNC Bank
New York, NY
ABA Number: 031000053
Ref: Travelers Corporate Loan Fund
Account Number: 85-110-88160
Further Reference: 34340120369977
VAN KAMPEN PRIME RATE INCOME
TRUST
as Lender
Notification Process (must be reported to both of the following):
Van Kampen Prime Rate Income Trust
One Parkview Plaza
Oakbrook Terrace, IL 60181
Attention: Sean Kelley
Telephone: (630) 684-6262
Facsimile: (630) 684-6740/41
37
State Street Bank & Trust
Corporate Trust Department
P.O. Box 778
Boston, MA 02102
Attention: Anne Chiebnik
Telephone: (617) 664-5481
Facsimile: (617) 664-5366/67
Credit/Documentation:
Van Kampen
One Parkview Plaza
Oakbrook Terrace, IL 60181
Attention: Jeffrey Maillet, Senior Vice
President/Portfollio Manager
Telephone: (630) 684-6438
Facsimile: (630) 684-6740/41
Wiring Instructions:
State Street Bank & Trust, Boston, MA
ABA No.: 011-00-0028
DDA Account No.: 6978-039-3
Corporate Trust Division
Re: VKAC PRIT (Name of Loan)
KZH APPALOOSA LLC
as Lender
Domestic Address:
Chase Manhattan Bank
450 West 33rd Street
15th Floor
New York, NY 10001
Attention: Virginia Conway
Telephone: (212) 946-7575
Facsimile: (212) 946-7776
Business and/or Credit, Administrative/Operations
Contact and Execution Copies to:
Virginia Conway
Telephone: (212) 946-7575
Facsimile: (212) 946-7776
Payment Instructions:
The Chase Manhattan Bank - NY
ABA No.: 021000021
Account No.: 507-898095
Credit to: KZH APPALOOSA LLC
Attention: Virginia Conway
KZH CRESCENT LLC
as Lender
Domestic and Eurodollar Lending Office
KZH Crescent LLC
c/o The Chase Manhattan Bank
450 West 33rd Street - 15th Floor
New York, NY 10001
Attention: Virginia Conway
Telephone: (212) 956-7575
Facsimile: (212) 946-7776
For Business and/or Credit Matters:
Mark L. Gold/Justin Driscoll
KZH Crescent LLC
c/o Trust Company of the West
200 Park Avenue, Suite 2200
New York, NY 10166-0228
Telephone: (212) 771-4000
Facsimile: (212) 771-4159
Copy to:
Virginia Conway
KZH Crescent LLC
For Administrative/Operations Matters:
Joe Nerich
The Chase Manhattan Bank
Loan & Agency Services
1 Chase Manhattan Plaza - 8th Floor
New York, NY 10081
Telephone: (212) 552-7247
Facsimile: (212) 552-5642
38
Copy to:
Virginia Conway
KZH Crescent LLC
Copy to:
Mark L. Gold/Justin Driscoll
KZH Crescent LLC
c/o Trust Company of the West
200 Park Avenue, Suite 2200
New York, NY 10166-0228
Telephone: (212) 771-4000
Facsimile: (212) 771-4159
All wire payments should be sent to:
The Chase Manhattan Bank - NY
ABA #: 021-000-021
A/C#: 507-8-73793
Credit to: KZH Crescent LLC
Attention: Virginia Conway
KZH CRESCENT - 2 LLC
as Lender
Domestic and Eurodollar Lending Office
KZH Crescent - 2 LLC
c/o The Chase Manhattan Bank
450 West 33rd Street - 15th Floor
New York, NY 10001
Attention: Virginia Conway
Telephone: (212) 956-7575
Facsimile: (212) 946-7776
For Business and/or Credit Matters:
Mark L. Gold/Justin Driscoll
KZH Crescent - 2 LLC
c/o Trust Company of the West
200 Park Avenue, Suite 2200
New York, NY 10166-0228
Telephone: (212) 771-4000
Facsimile: (212) 771-4159
Copy to:
Virginia Conway
KZH Crescent - 2 LLC
For Administrative/Operations Matters:
Joe Nerich
The Chase Manhattan Bank
Loan & Agency Services
1 Chase Manhattan Plaza - 8th Floor
New York, NY 10081
Telephone: (212) 552-7247
Facsimile: (212) 552-5642
Copy to:
Virginia Conway
KZH Crescent - 2 LLC
Copy to:
Mark L. Gold/Justin Driscoll
KZH Crescent - 2 LLC
c/o Trust Company of the West
200 Park Avenue, Suite 2200
New York, NY 10166-0228
Telephone: (212) 771-4000
Facsimile: (212) 771-4159
All wire payments should be sent to:
The Chase Manhattan Bank - NY
ABA #: 021-000-021
A/C#: ###-##-####
Credit to: KZH Crescent - 2 LLC
Attention: Virginia Conway
KZH CRESCENT - 3 LLC
as Lender
Domestic and Eurodollar Lending Office
KZH Crescent - 3 LLC
c/o The Chase Manhattan Bank
450 West 33rd Street - 15th Floor
New York, NY 10001
Attention: Virginia Conway
Telephone: (212) 956-7575
Facsimile: (212) 946-7776
For Business and/or Credit Matters:
Mark L. Gold/Justin Driscoll
KZH Crescent - 3 LLC
39
c/o Trust Company of the West
200 Park Avenue, Suite 2200
New York, NY 10166-0228
Telephone: (212) 771-4000
Facsimile: (212) 771-4159
Copy to:
Virginia Conway
KZH Crescent - 3 LLC
For Administrative/Operations Matters:
Joe Nerich
The Chase Manhattan Bank
Loan & Agency Services
1 Chase Manhattan Plaza - 8th Floor
New York, NY 10081
Telephone: (212) 552-7247
Facsimile: (212) 552-5642
Copy to:
Virginia Conway
KZH Crescent - 3 LLC
Copy to:
Mark L. Gold/Justin Driscoll
KZH Crescent - 3 LLC
c/o Trust Company of the West
200 Park Avenue, Suite 2200
New York, NY 10166-0228
Telephone: (212) 771-4000
Facsimile: (212) 771-4159
All wire payments should be sent to:
The Chase Manhattan Bank - NY
ABA #: 021-000-021
A/C#: 507-898001
Credit to: KZH Crescent - 3 LLC
Attention: Virginia Conway
KZH - SOLEIL LLC
as Lender
Domestic and Eurodollar Address:
KZH - Soleil LLC
c/o The Chase Manhattan Bank
450 West 33rd Street - 15 Floor
New York, NY 10001
Attention: Virginia Conway
Telephone: (212) 946-7575
Facsimile: (212) 946-7776
Where Execution Copies Should Be Sent for
Signature(s):
Attention: Virginia Conway
Telephone: (212) 946-7575
Facsimile: (212) 946-7776
Credit Contact:
Steven Staver
SAI Investment Adviser, Inc.
1 SunAmerica Center - 34th Floor
Century City
Los Angeles, CA 90067-6022
Attention: Virginia Conway
Telephone: (212) 946-7575
Facsimile: (212) 946-7776
Operations Contact:
Joseph Nerich
The Chase Manhattan Bank
Loan & Agency Services
450 West 33rd Street - 8th Floor
New York, NY 10001
Telephone: (212) 552-7247
Facsimile: (212) 552-5642
Attention: Virginia Conway
Telephone: (212) 946-7575
Facsimile: (212) 946-7776
Payment Instructions:
Bank Name: The Chase Manhattan Bank - NY
ABA #: 021000021
Account #: 507-865138
Credit to: KZH - Soleil LLC
Attention: Virginia Conway
KZH - SOLEIL-2 LLC
as Lender
40
Domestic and Eurodollar Address:
KZH - Soleil-2 LLC
c/o The Chase Manhattan Bank
450 West 33rd Street - 15 Floor
New York, NY 10001
Attention: Virginia Conway
Telephone: (212) 946-7575
Facsimile: (212) 946-7776
Where Execution Copies Should Be Sent for
Signature(s):
Attention: Virginia Conway
Telephone: (212) 946-7575
Facsimile: (212) 946-7776
Credit Contact:
Steven Staver
SAI Investment Adviser, Inc.
1 SunAmerica Center - 34th Floor
Century City
Los Angeles, CA 90067-6022
Copy to:
Attention: Virginia Conway
Telephone: (212) 946-7575
Facsimile: (212) 946-7776
Operations Contact:
Joseph Nerich
The Chase Manhattan Bank
Loan & Agency Services
450 West 33rd Street - 8th Floor
New York, NY 10001
Telephone: (212) 552-7247
Facsimile: (212) 552-5642
Attention: Virginia Conway
Telephone: (212) 946-7575
Facsimile: (212) 946-7776
Payment Instructions:
Bank Name: The Chase Manhattan Bank - NY
ABA #: 021000021
Account #: 507-835220
Credit to: KZH - Soleil - 2 LLC
Attention: Virginia Conway
KZH STERLING LLC
as Lender
Domestic and Eurodollar Address:
KZH STERLING LLC
c/o The Chase Manhattan Bank
450 West 33rd Street - 15 Floor
New York, NY 10001
Attention: Virginia Conway
Telephone: (212) 946-7575
Facsimile: (212) 946-7776
Where Execution Copies Should Be Sent for
Signature(s):
KZH STERLING LLC
c/o The Chase Manhattan Bank
450 West 33rd Street - 15 Floor
New York, NY 10001
Attention: Virginia Conway
For Business and/or Credit Matters:
Virginia Conway
KZH STERLING LLC
c/o The Chase Manhattan Bank
450 West 33rd Street - 15 Floor
New York, NY 10001
Telephone: (212) 946-7575
Facsimile: (212) 946-7776
For Administrative/Operations Matters:
Virginia Conway
KZH STERLING LLC
c/o The Chase Manhattan Bank
450 West 33rd Street - 15 Floor
New York, NY 10001
Telephone: (212) 946-7575
Facsimile: (212) 946-7776
41
Payment Instructions:
Bank Name: The Chase Manhattan Bank - NY
ABA#: 021000021
Account#: 507-899083
Credit To: KZH STERLING LLC
Attention: Virginia Conway
KZH RIVERSIDE LLC
as Lender
Domestic and Eurodollar Address:
KZH RIVERSIDE LLC
c/o The Chase Manhattan Bank
450 West 33rd Street
15th Floor
New York, NY 10001
Attention: Virginia Conway
Telephone: (212) 946-7575
Facsimile: (212) 946-7776
Credit Contact:
Dale Burrow
Second Vice President
222 South Riverside Plaza
28th Floor
Chicago, IL 60606
Telephone: 537-4230
Facsimile: 537-4239
Payment Instructions:
Bank Name: The Chase Manhattan Bank-NY
ABA No.: 021000021
Account No.: 507-898052
Credit To: KZH RIVERSIDE LLC
Attention: Virginia Conway
KZH WATERSIDE LLC
as Lender
Domestic and Eurodollar Address:
KZH Waterside LLC
c/o The Chase Manhattan Bank
450 West 33rd Street - 15th Floor
New York, NY 10001
Attention: Virginia Conway
Telephone: (212) 946-7575
Facsimile: (212) 946-7776
Credit and Operations Contact:
KZH Waterside LLC
c/o The Chase Manhattan Bank
450 West 33rd Street - 15th Floor
New York, NY 10001
Attention: Virginia Conway
Telephone: (212) 946-7575
Facsimile: (212) 946-7776
Payment Instructions:
Bank Name: The Chase Manhattan Bank - NY
ABA #: 021000021
Account #: 507-940679
Credit to: KZH Waterside LLC
Attention: Virginia Conway
KZH CNC LLC
as Lender
KZH CNC LLC
Domestic and Eurodollar Address:
KZH CNC LLC
c/o The Chase Manhattan Bank
450 West 33rd Street - 15 Floor
New York, NY 10001
Attention: Virginia Conway
Telephone: (212) 946-7575
Facsimile: (212) 946-7776
Credit Contact:
Attention: Virginia Conway
Telephone: (212) 946-7575
Facsimile: (212) 946-7776
Operations Contact:
Attention: Virginia Conway
Telephone: (212) 946-7575
Facsimile: (212) 946-7776
42
Payment Instructions:
Bank Name: The Chase Manhattan Bank - NY
ABA#: 021000021
Account#: 507-8-34801
Credit To: KZH CN LLC
Attention: Virginia Conway
CYPRESSTREE INVESTMENT
MANAGEMENT COMPANY, INC.
as Lender
KZH CypressTree-1 LLC
Domestic and Eurodollar Address:
KZH CypressTree - 1 LLC
c/o The Chase Manhattan Bank
450 West 33rd Street - 15th Floor
New York, NY 10001
Attention: Virginia Conway
Telephone: (212) 946-7575
Facsimile: (212) 946-7776
Business and/or Credit Contact and Execution
copies:
Virginia Conway
KZH CypressTree - 1 LLC
c/o The Chase Manhattan Bank
450 West 33rd Street - 15th Floor
New York, NY 10001
Telephone: (212) 946-7575
Facsimile: (212) 946-7776
Copy to:
Administrative/Operations Contact:
For Primary Trades
Virginia Conway
KZH CypressTree - 1 LLC
c/o The Chase Manhattan Bank
450 West 33rd Street - 15th Floor
New York, NY 10001
Telephone: (212) 946-7575
Facsimile: (212) 946-7776
For Secondary Trades
Joseph Nerich
The Chase Manhattan Bank
Loan & Agency Services
1 Chase Manhattan Plaza - 8th Floor
New York, NY 10081
Telephone: (212) 552-7247
Facsimile: (212) 552-5642
Payment Instructions
Bank Name: The Chase Manhattan Bank-NY
ABA#: 021000021
Account#: 507-8-39196
Credit To: KZH CypressTree - 1 LLC
Attention: Virginia Conway
43
EXHIBIT A-1
FORM OF
NOTICE OF GROUP BORROWING
Date: ___________________________
To: Bank of America National Trust and Savings Association, as Agent
under the Amended and Restated Credit Agreement, dated as of March
19, 1999 (as extended, renewed, amended or restated from time to
time, the "Credit Agreement"), among Dura Automotive Systems, Inc.,
Dura Operating Corp., certain of their Subsidiaries, various
financial institutions, Bank of America National Trust and Savings
Association, as Agent, BA Australia Limited, as Australian Lender,
Bank of America Canada, as Canadian Lender, and Bank of America
National Trust and Savings Association, as Swing Line Lender and
Issuing Lender.
Ladies and Gentlemen:
The undersigned, _________________(1) ("Borrower"), refers to the
Credit Agreement (terms defined therein being used herein as therein defined)
and hereby gives you notice irrevocably, pursuant to Section 2.3 of the Credit
Agreement, of the Borrowing under the ___________(2) Facility specified below:
(a) The Business Day of the proposed Borrowing is
__________________________, ________.
(b) The Borrowing is to be comprised of [Floating Rate]
[Offshore Rate] Loans.
(c) The aggregate amount of the proposed Borrowing is [U.S.
$_______________________] [other Applicable Currency].
(d) The duration of the Interest Period for the Offshore Rate
Loans included in the Borrowing shall be _____ months.
Borrower certifies that the following statements are true on the
date hereof, and will be true on the date of the
- ----------
(1) Insert Borrower name.
(2) Insert "Revolving", "Interim Term", "Tranche A Term", "Tranche B Term".
proposed Borrowing, before and after giving effect thereto and to the
application of the proceeds therefrom:
[(a) the representations and warranties contained in Article
IX of the Credit Agreement are true and correct in all material
respects as though made on and as of such date (except to the extent
such representations and warranties expressly relate to an earlier
date, in which case they are true and correct as of such date); and
(b) no Event of Default or Unmatured Event of Default has
occurred and is continuing or will result from such proposed
Borrowing; and](3)
[(c) the proposed Borrowing will not cause the Total Revolving
Outstandings to exceed the combined Revolving Commitments (less the
Schade Reserved Amount); and
(d) the proposed Borrowing will not cause the aggregate Dollar
Equivalent amount of all Revolving Group Loans made in British
pounds, French francs, Deutschemarks, Euros and other Offshore
Currencies to exceed U.S. $100,000,000; and
(e) the proposed Borrowing will not cause the Total Trident
Revolving Outstandings to exceed U.S. $55,000,000; and
(f) the proposed Borrowing will not cause the Total Borrower
Revolving Outstandings of any Borrower to exceed the amount set
forth for such Borrower on Schedule 2.1(d) attached.](4)
[INSERT NAME OF BORROWER]
By: ____________________________________
Title: _________________________________
- ----------
(3) Insert for Non-Acquisition Credit Extension
(4) Insert for Revolving Group Loans.
2
EXHIBIT A-2
FORM OF
NOTICE OF AUSTRALIAN BORROWING
Date: _____________________________
To: Bank of America National Trust and Savings Association, as Agent
under the Amended and Restated Credit Agreement, dated as of March
19, 1999 (as extended, renewed, amended or restated from time to
time, the "Credit Agreement"), among DURA OPERATING CORP., certain
of its Subsidiaries, various financial institutions, and Bank of
America National Trust and Savings Association as Agent, and BA
Australia Limited, as the Australian Lender under the Credit
Agreement.
Ladies and Gentlemen:
The undersigned, Dura Asia-Pacific Pty Limited ACN 004 884 539
("Borrower"), refers to the Credit Agreement (terms defined therein being used
herein as therein defined) and hereby gives you notice irrevocably, pursuant to
Section 4.2 of the Credit Agreement, of the Borrowing specified below:
1. The Business Day of the proposed Borrowing is
___________________________, ________.
2. The Borrowing is to be comprised of [Australian Floating
Rate] [Australian Bank Bill Rate] [Australian U.S. Dollar] Loans.
3. The aggregate amount of the proposed Borrowing is
[A$____________] [U.S.$____________].
4. The duration of the Interest Period for the Australian Bank
Bill Rate Loans included in the Borrowing shall be [___ months]
[___days].
Borrower certifies that the following statements are true on the
date hereof, and will be true on the date of the proposed Borrowing, before and
after giving effect thereto and to the application of the proceeds therefrom:
(a) the representations and warranties contained in Article IX
of the Credit Agreement are true and correct in all material
respects as though made on and as of such date (except to the extent
such representations and warranties expressly relate to an
earlier date, in which case they are true and correct as of such
date);
(b) no Event of Default or Unmatured Event of Default has
occurred and is continuing or will result from such proposed
Borrowing;
(c) the proposed Borrowing will not cause the Total Revolving
Outstandings to exceed the combined Revolving Commitments (less the
Schade Reserved Amount); and
(d) the proposed Borrowing will not cause the aggregate
principal Dollar Equivalent amount of all outstanding Australian
Loans to exceed the Australian Loans Sublimit.
DURA ASIA-PACIFIC PTY LIMITED
ACN 004 884 539
By: ____________________________________
Title: _________________________________
2
EXHIBIT A-3
FORM OF
NOTICE OF CANADIAN BORROWING
Date: ___________________________________
To: Bank of America National Trust and Savings Association, as Agent
under the Amended and Restated Credit Agreement, dated as of March
19, 1999 (as extended, renewed, amended or restated from time to
time, the "Credit Agreement"), among DURA OPERATING CORP., certain
of its Subsidiaries, various financial institutions, and Bank of
America National Trust and Savings Association as Agent, and Bank of
America Canada, as the Canadian Lender under the Credit Agreement.
Ladies and Gentlemen:
The undersigned, _________________________(1) ("Borrower"), refers
to the Credit Agreement (terms defined therein being used herein as therein
defined) and hereby gives you notice irrevocably, pursuant to Section 5.2 of the
Credit Agreement, of the Borrowing specified below:
1. The Business Day of the proposed Borrowing is
________________________, ________.
2. The Borrowing is to be comprised of [Canadian Prime Rate]
[Canadian U.S. Dollar Base Rate Loans] [Offshore Canadian] [Canadian
U.S. Dollar Offshore Rate] Loans.
3. The aggregate amount of the proposed Borrowing is [C$_____]
[U.S. $_________________].
[4. The duration of the Interest Period for the [Offshore
Canadian] [Canadian U.S. Dollar Offshore Rate] Loans included in the
Borrowing shall be [___ months] [___days].]
Borrower certifies that the following statements are true on the
date hereof, and will be true on the date of the proposed Borrowing, before and
after giving effect thereto and to the application of the proceeds therefrom:
- ----------
(1) Insert "Dura Automotive Systems (Canada), Ltd." or "Dura Automotive
Systems Cable Operations Canada, Inc."
(a) the representations and warranties contained in Article IX
of the Credit Agreement are true and correct in all material
respects as though made on and as of such date (except to the extent
such representations and warranties expressly relate to an earlier
date, in which case they are true and correct as of such date);
(b) no Event of Default or Unmatured Event of Default has
occurred and is continuing or will result from such proposed
Borrowing;
(c) the proposed Borrowing will not cause the Total Revolving
Outstandings to exceed the combined Revolving Commitments (less the
Schade Reserved Amount);
(d) the proposed Borrowing will not cause the aggregate
principal Dollar Equivalent amount of all outstanding [Dura]
[Trident] Canadian Loans to exceed the [Dura] [Trident] Canadian
Loans Sublimit; and
(e) the proposed Borrowing will not cause the Total Trident
Revolving Outstandings to exceed U.S. $55,000,000.
[INSERT NAME OF BORROWER]
By: ____________________________________
Title: _________________________________
2
EXHIBIT A-4
FORM OF
REQUEST FOR SWING LINE LOAN
Date: ___________________________
To: Bank of America National Trust and Savings Association, as Agent
under the Amended and Restated Credit Agreement, dated as of March
19, 1999 (as extended, renewed, amended or restated from time to
time, the "Credit Agreement"), among DURA OPERATING CORP., certain
of its Subsidiaries, various financial institutions, Bank of America
National Trust and Savings Association, as Agent, BA Australia
Limited, as Australian Lender, Bank of America Canada, as Canadian
Lender, and Bank of America National Trust and Savings Association,
as Swing Line Lender and Issuing Lender
and
Bank of America National Trust and Savings Association, as Swing
Line Lender under the Credit Agreement
Ladies and Gentlemen:
The undersigned, _________________ ("Borrower"), refers to the
Credit Agreement (terms defined therein being used herein as therein defined)
and hereby gives you notice irrevocably, pursuant to Section 3.2 of the Credit
Agreement, of the Borrowing of the Swing Line Loan specified below:
(a) The Business Day of the proposed Borrowing is
________________________, ________.
(b) The amount of the proposed Borrowing is [U.S.
$____________________] [other Applicable Currency].
Borrower certifies that the following statements are true on the
date hereof, and will be true on the date of the proposed Borrowing, before and
after giving effect thereto and to the application of the proceeds therefrom:
(a) the representations and warranties contained in Article IX
of the Credit Agreement are true and correct in all material
respects as though made on and as of such date (except to the extent
such
representations and warranties expressly relate to an earlier date,
in which case they are true and correct as of such date);
(b) no Event of Default or Unmatured Event of Default has
occurred and is continuing or will result from such proposed
Borrowing;
(c) the proposed Borrowing will not cause the Total Revolving
Outstandings to exceed the combined Revolving Commitments (less the
Schade Reserved Amount;
(d) the proposed Borrowing will not cause the aggregate
principal Dollar Equivalent amount of all outstanding Swing Line
Loans of all Borrowers to exceed U.S.$50,000,000;
(d) the proposed Borrowing will not cause the Total Trident
Revolving Outstandings to exceed a Dollar Equivalent amount of U.S.
$55,000,000; and
(e) the proposed Borrowing will not cause the Total Borrower
Revolving Outstandings of any Borrower to exceed the amount set
forth for such Borrower on Schedule 2.1(d).
[INSERT NAME OF BORROWER]
By: ____________________________________
Title: _________________________________
2
EXHIBIT B-1
FORM OF
NOTICE OF CONVERSION/CONTINUATION
Date: ____________________________________
To: Bank of America National Trust and Savings Association, as Agent
under the Amended and Restated Credit Agreement, dated as of March
19, 1999 (as extended, renewed, amended or restated from time to
time, the "Credit Agreement"), among DURA OPERATING CORP., certain
of its Subsidiaries, various financial institutions, and Bank of
America National Trust and Savings Association, as Agent.
Ladies and Gentlemen:
The undersigned,______________(1) ("Borrower"), refers to the Credit
Agreement (terms defined therein being used herein as therein defined) and
hereby gives you notice irrevocably, pursuant to Section 2.4 of the Credit
Agreement, with respect to the [conversion] [continuation] of the Loans under
the ___________(2) Facility specified below, that:
1. The Conversion/Continuation Date is _________________,
________.
2. The aggregate amount of the Loans to be [converted]
[continued] is [U.S. $_______________________] [other Applicable
Currency].
3. The Loans are to be [converted into] [continued as]
[Offshore Rate] [Floating Rate] Loans.
4. The duration of the Interest Period for the Offshore Rate
Loans included in the [conversion] [continuation] shall be ______
months.
Borrower certifies that on the date hereof, and on the proposed
Conversion/Continuation Date both before and after giving effect thereto, no
Event of Default or Unmatured Event of Default has occurred and is continuing,
or would result from such proposed [conversion] [continuation].
[INSERT NAME OF BORROWER]
By: ____________________________________
Title: _________________________________
- ----------
(1) Insert Borrower name.
(2) Insert "Revolving", "Interim Term", "Tranche A Term", "Tranche B Term".
EXHIBIT B-2
FORM OF
NOTICE OF CONVERSION/CONTINUATION (AUSTRALIAN)
Date: ____________________________________
To: Bank of America National Trust and Savings Association, as Agent for
the Lenders under the Amended and Restated Credit Agreement, dated
as of March 19, 1999 (as extended, renewed, amended or restated from
time to time, the "Credit Agreement"), among DURA OPERATING CORP.,
certain of its Subsidiaries, various financial institutions, and
Bank of America National Trust and Savings Association, as Agent;
and BA Australia Limited, as the Australian Lender under the Credit
Agreement.
Ladies and Gentlemen:
The undersigned, Dura Asia-Pacific Pty Limited ACN 004 884 539
("Borrower"), refers to the Credit Agreement (terms defined therein being used
herein as therein defined) and hereby gives you notice irrevocably, pursuant to
Section 4.3 of the Credit Agreement, with respect to the [conversion]
[continuation] of the Loans specified herein, that:
1. The Conversion/Continuation Date is __________________, _______.
2. The aggregate amount of the Loans to be [converted] [continued]
is [A$_____________________].
3. The Loans are to be [converted into] [continued as] [Australian
Bank Bill Rate] [Australian Floating Rate] Loans.
4. The duration of the Interest Period for the [Australian Bank Bill
Rate] Loans included in the [conversion] [continuation] shall be [___
months] [___ days].
Borrower certifies that the following statements are true on the date
hereof, and will be true on the proposed Conversion/Continuation Date before and
after giving effect thereto no Event of Default or Unmatured Event of Default
has occurred and is continuing, or would result from such proposed [conversion]
[continuation].
DURA ASIA-PACIFIC PTY LIMITED
ACN 004 884 539
By: ____________________________________
Title: _________________________________
EXHIBIT B-3
FORM OF
NOTICE OF CONVERSION/CONTINUATION (CANADIAN)
Date: ____________________________________
To: Bank of America National Trust and Savings Association, as Agent for
the Lenders under the Amended and Restated Credit Agreement, dated
as of March 19, 1999 (as extended, renewed, amended or restated from
time to time, the "Credit Agreement"), among DURA OPERATING CORP.,
certain of its Subsidiaries, various financial institutions, and
Bank of America National Trust and Savings Association, as Agent;
and Bank of American Canada, as Canadian Lender under the Credit
Agreement.
Ladies and Gentlemen:
The undersigned, __________________________(1) ("Borrower"), refers to the
Credit Agreement (terms defined therein being used herein as therein defined)
and hereby gives you notice irrevocably, pursuant to Section 5.3 of the Credit
Agreement, with respect to the [conversion] [continuation] of the Loans
specified herein, that:
1. The Conversion/Continuation Date is ____________________, ______
________.
2. The aggregate amount of the Loans to be [converted] [continued]
is [C$____________________] [U.S. $_____________].
3. The Loans are to be [converted into] [continued as] [Canadian
Prime Rate] [Canadian U.S. Dollar Base Rate Loans] [Offshore Canadian]
[Canadian U.S. Dollar Offshore Rate] Loans.
[4. The duration of the Interest Period for the [Offshore Canadian]
[Canadian U.S. Dollar Offshore Rate] Loans included in the [conversion]
[continuation] shall be [___ months] [___ days].]
Borrower certifies that the following statements are true on the date
hereof, and will be true on the proposed Conversion/Continuation Date before and
after giving effect thereto no Event of Default or Unmatured Event of Default
has
- ----------
(1) Insert "Dura Automotive Systems (Canada), Ltd." or "Trident Automotive
Canada Inc."
occurred and is continuing, or would result from such proposed [conversion]
[continuation].
[INSERT NAME OF BORROWER]
By: ____________________________________
Title: _________________________________
2
EXHIBIT C
FORM OF
COMPLIANCE CERTIFICATE
To: Bank of America National Trust and
Savings Association, as Agent
and the Lenders which are parties
to the Credit Agreement referred to below
Reference is made to the Amended and Restated Credit Agreement dated as of
March 19, 1999 (as amended or otherwise modified from time to time, the "Credit
Agreement") among DURA AUTOMOTIVE SYSTEMS, INC. ("DASI"), DURA OPERATING CORP.
("Dura") certain of DASI's Subsidiaries, Bank of America National Trust and
Savings Association, as Agent and the various financial institutions party
thereto as Lenders. Terms used but not otherwise defined herein are used herein
as defined in the Credit Agreement.
I. Report. Enclosed herewith is a copy of the [annual audit/quarterly] report
of DASI as at ____________, ____ (the "Computation Date"), which report
fairly presents in all material respects the consolidated financial
position of DASI and its Subsidiaries, as of the Computation Date.
II. Financial Tests. DASI hereby certifies and warrants to you that the
attached is a true and correct computation as at the Computation Date of
the ratios and/or financial restrictions contained in the Credit
Agreement.
III. Defaults. DASI hereby further certifies and warrants to you that no Event
of Default or Unmatured Event of Default has occurred and is continuing.
IN WITNESS WHEREOF, DASI has caused this Certificate to be executed
and delivered by its duly authorized officer this _________________ day of
_______________________, ____.
DURA AUTOMOTIVE SYSTEMS, INC.
By: ______________________________
Title:____________________________
EXHIBIT D
FORM OF CORPORATE GUARANTY
I. RECITALS
Reference is made to that certain Amended and Restated Credit
Agreement dated as of March 19, 1999 (as the same may be amended, modified,
restated or supplemented from time to time, the "Credit Agreement") among Dura
Automotive Systems, Inc., a Delaware corporation ("DASI"), Dura Operating Corp.,
a Delaware corporation ("Dura"), certain subsidiaries of DASI as borrowers (Dura
and such subsidiaries are collectively referred to as "Borrowers"), the various
commercial lending institutions as are, or may from time to time become, parties
thereto (the "Lenders") and Bank of America National Trust and Savings
Association, a national banking association, as agent ("Agent") for the Lenders,
pursuant to which certain financial accommodations are provided to the
Borrowers. As one of the conditions to providing such financial accommodations,
Agent has required that the undersigned, [Name of Guarantor] ("Guarantor"), a
subsidiary of _______, guaranty the [Obligations](2) [Trident Obligations (as
defined in the Credit Agreement)](3) of the Borrowers to Agent, Lenders and the
other Lender Parties. Unless otherwise defined herein, capitalized terms used
herein shall have the meanings ascribed to such terms in the Credit Agreement.
II. GUARANTY
Therefore, for value received, and in consideration of any loan,
advance or financial accommodation of any kind whatsoever heretofore, now or
hereafter made, given or granted to the Borrowers by Agent and/or Lenders and/or
other Lender Parties, Guarantor hereby unconditionally and irrevocably
guaranties the full and prompt payment when due, whether at maturity or earlier,
by reason of acceleration or otherwise, and at all times thereafter, of all
indebtedness, liabilities and obligations of every kind and nature of the
Borrowers and the other Loan Parties to Agent and/or Lenders and/or other Lender
Parties, howsoever created, arising or evidenced, whether direct or indirect,
absolute or contingent, joint or several, now or hereafter existing, or due or
to become due, and howsoever owned, held or acquired by Agent and/or Lenders
and/or other Lender Parties, whether through discount, overdraft, purchase,
direct loan or as collateral or otherwise, and constituting all
- ----------
(2) Insert for any Non-Trident Subsidiary.
(3) Insert for any Trident Borrower or any Trident Subsidiary.
advances, debts, liabilities, obligations, covenants and duties which are owing
by any Loan Party to any Lender Party, whether direct or indirect (including
those acquired by assignment), absolute or contingent, due or to become due, or
now existing or hereafter arising, arising under (i) any Loan Document, (ii) any
Swap Contract or (iii) any Other Qualified Secured Agreement [and constituting
Trident Obligations], including, without limitation any post-petition bankruptcy
interest [(all such indebtedness, liabilities and obligations being hereinafter
referred to as "Borrowers' Obligations")]. Guarantor further agrees to pay all
costs and expenses including, without limitation, all court costs and reasonable
attorneys' and paralegals' fees and expenses, paid or incurred by Agent and/or
Lender Parties in endeavoring to collect all or any part of [Borrowers']
[Trident] Obligations from, or in prosecuting any action against, Guarantor of
all or any part of [Borrowers'] [Trident] Obligations.
Guarantor hereby agrees that its obligations under this Corporate
Guaranty shall be unconditional, irrespective of (i) the validity or
enforceability of [Borrowers'] [Trident] Obligations or any part thereof, or of
any promissory note or other document evidencing all or any part of
[Borrowers'] [Trident] Obligations, (ii) the absence of any attempt to collect
[Borrowers'] [Trident] Obligations from any Borrower or any other guarantor or
other action to enforce the same, (iii) the waiver or consent by Agent or Lender
Parties with respect to any provision of any agreement, instrument or document
evidencing or securing all or any part of [Borrowers'] [Trident] Obligations, or
any other agreement, instrument or document now or hereafter executed by a
Borrower or another Loan Party and delivered to Agent or any Lender Party, (iv)
the failure by Agent to take any steps to perfect and maintain its security
interest in, or to preserve its rights to, any security or collateral for
[Borrowers'] [Trident] Obligations, for its benefit or the ratable benefit of
Lender Parties, (v) Agent's election, in any proceeding instituted under Chapter
11 of Title 11 of the United States Code (11 U.S.C. Section 101 et seq.), as
amended (the "Bankruptcy Code") of the application of Section 1111(b)(2) of the
Bankruptcy Code or any similar foreign statute, (vi) any borrowing or grant of a
security interest by a Borrower or another Loan Party as debtor-in-possession,
under Section 364 of the Bankruptcy Code or any similar foreign statute, (vii)
the disallowance, under Section 502 of the Bankruptcy Code or any similar
foreign statute, of all or any portion of Agent's or Lender Parties' claim(s)
for repayment of [Borrowers'] [Trident] Obligations, or (viii) any other
circumstance which might otherwise constitute a legal or equitable discharge or
defense of a Borrower or a guarantor.
Notwithstanding any provisions of this Guaranty to the contrary, it
is intended that this Guaranty, and any liens and security interests granted by
Guarantor to secure this Guaranty,
2
not constitute a "Fraudulent Conveyance" (as defined below). Consequently,
Guarantor agrees that if this Guaranty, or any liens or security interests
securing this Guaranty, would, but for the application of this sentence,
constitute a Fraudulent Conveyance, this Guaranty and each such lien and
security interest shall be valid and enforceable only to the maximum extent that
would not cause this Guaranty or such lien or security interest to constitute a
Fraudulent Conveyance, and this Guaranty shall automatically be deemed to have
been amended accordingly at all relevant times. For purposes hereof, "Fraudulent
Conveyance" means a fraudulent conveyance under Section 548 of the Bankruptcy
Code or a fraudulent conveyance or fraudulent transfer under the provisions of
any applicable fraudulent conveyance or fraudulent transfer law or similar law
of any state, nation or other governmental unit, as in effect from time to time.
[Modify as appropriate for Guarantor's jurisdiction.]
No payment made by or for the account or benefit of Guarantor
(including, without limitation, (i) a payment made by a Borrower in respect of
[Borrowers'] [Trident] Obligations, (ii) a payment made by any Person under any
other guaranty of [Borrowers'] [Trident] Obligations or (iii) a payment made by
means of set-off or other application of funds by Agent or any of Lender
Parties) pursuant to this Corporate Guaranty shall entitle Guarantor, by
subrogation or otherwise, to any payment by a Borrower or Loan Party or from or
out of any property of a Borrower or Loan Party, and Guarantor shall not
exercise any right or remedy against a Borrower or Loan Party or any property of
a Borrower or Loan Party including, without limitation, any right of
contribution or reimbursement by reason of any performance by Guarantor under
this Corporate Guaranty. The provisions of this paragraph shall survive until
payment of the [Borrowers'] [Trident] Obligations or as otherwise permitted by
the Credit Agreement. Guarantor and Agent hereby agree that each Borrower is and
shall be a third party beneficiary of the provisions of this paragraph.
Guarantor hereby waives diligence, presentment, demand of payment,
filing of claims with a court in the event of receivership or bankruptcy of
another Loan Party, protest or notice with respect to [Borrowers'] [Trident]
Obligations and all demands whatsoever, and covenants that this Corporate
Guaranty will not be discharged, except by complete and irrevocable payment and
performance of the obligations and liabilities contained herein. No notice to
Guarantor or any other party shall be required for Agent, on behalf of itself
and Lender Parties, to make demand hereunder. Such demand shall constitute a
mature and liquidated claim against Guarantor. Upon the occurrence and during
the continuance of any Event of Default, Agent may, at its sole election,
proceed directly and at once, without notice, against Guarantor to collect and
recover the full
3
amount or any portion of [Borrowers'] [Trident] Obligations, without first
proceeding against any other Loan Party, any other person, firm, corporation, or
any security or collateral for [Borrowers'] [Trident] Obligations. Payments and
credits, if any, from Guarantor, the Borrowers, any other person, firm or
corporation, or any security or collateral for [Borrowers'] [Trident]
Obligations, on account of [Borrowers'] [Trident] Obligations or of any other
liability of Guarantor to Agent and Lender Parties arising hereunder shall be
applied in accordance with the terms of the Credit Agreement.
To the extent permitted under the Credit Agreement, Agent and Lender
Parties are hereby authorized, without notice or demand to Guarantor and without
affecting or impairing the liability of Guarantor hereunder, to, from time to
time, (i) renew, extend, accelerate or otherwise change the time for payment of,
or other terms relating to, [Borrowers'] [Trident] Obligations or otherwise
modify, amend or change the terms of any promissory note or other agreement,
document or instrument now or hereafter executed by a Borrower and delivered to
Agent or any Lender Party, (ii) accept partial payments on [Borrowers']
[Trident] Obligations, (iii) take and hold collateral for the payment of
[Borrowers'] [Trident] Obligations, or for the payment of this Corporate
Guaranty, or for the payment of any other guaranties of [Borrowers'] [Trident]
Obligations or other liabilities of the Loan Parties, and exchange, enforce,
waive and release any such collateral, (iv) apply such collateral and direct the
order or manner of sale thereof as in their sole discretion they may determine,
and (v) settle, release, compromise, collect or otherwise liquidate
[Borrowers'] [Trident] Obligations and any collateral therefor in any manner.
At any time after and during the continuance of an Event of Default,
Agent and Lender Parties may, in their sole discretion, without notice to
Guarantor and regardless of the acceptance of any collateral for the payment
hereof, appropriate and apply toward payment of [Borrowers'] [Trident]
Obligations (i) any indebtedness due or to become due from Agent or any of
Lender Parties to Guarantor and (ii) any moneys, credits or other property
belonging to Guarantor at any time held by or coming into the possession of
Agent or any of Lender Parties or any affiliates thereof, whether for deposit or
otherwise.
Guarantor hereby assumes responsibility for keeping itself informed
of the financial condition of the Borrowers, and any and all endorsers and other
guarantors of any agreement, instrument or document evidencing or securing all
or any part of [Borrowers'] [Trident] Obligations and of all other circumstances
bearing upon the risk of nonpayment of [Borrowers'] [Trident] Obligations or any
part thereof that diligent inquiry would reveal, and Guarantor hereby agrees
that none of Agent nor any Lender Party shall have any duty to advise Guarantor
of
4
information known to Agent or any Lender Party regarding such condition or any
such circumstances. Guarantor hereby acknowledges familiarity with the
Borrowers' financial condition and has not relied on any statements by Agent or
any Lender Party in obtaining such information. In the event Agent or any Lender
Party, in its sole discretion, undertakes at any time or from time to time to
provide any such information to Guarantor, none of Agent nor any Lender Party
shall be under any obligation (i) to undertake any investigation with respect
thereto, (ii) to disclose any information which, pursuant to accepted or
reasonable commercial finance practices, Agent or any Lender Party wishes to
maintain confidential or (iii) to make any other or future disclosures of such
information, or any other information, to Guarantor.
Guarantor consents and agrees that Agent shall be under no
obligation to marshal any assets in favor of Guarantor or against or in payment
of any or all of [Borrowers'] [Trident] Obligations. Guarantor further agrees
that, to the extent that a Loan Party makes a payment or payments to Agent or
any Lender Party, or Agent receives any proceeds of collateral, for its benefit
and the ratable benefit of Lender Parties, which payment or payments or any part
thereof are subsequently invalidated, declared to be fraudulent or preferential,
set aside or required to be repaid to such Loan Party, its estate, trustee,
receiver or any other party, including without limitation Guarantor, under any
bankruptcy law, state or federal law, common law or equitable cause, then to the
extent of such payment or repayment, [Borrowers'] [Trident] Obligations or the
part thereof which has been paid, reduced or satisfied by such amount shall be
reinstated and continued in full force and effect as of the date such initial
payment, reduction or satisfaction occurred, and this Corporate Guaranty shall
continue to be in existence and in full force and effect, irrespective of
whether any evidence of indebtedness has been surrendered or canceled.
Guarantor also waives all setoffs and counterclaims (other than
arising from the gross negligence or willful misconduct of the Agent or the
Lender Parties) and all presentments, demands for performance, notices of
nonperformance, protests, notices of protest, notices of dishonor, and notices
of acceptance of this Corporate Guaranty. Guarantor further waives all notices
of the existence, creation or incurring of new or additional indebtedness,
arising either from additional loans extended to any Loan Party or otherwise,
and also waives all notices that the principal amount, or any portion thereof,
or any interest on any agreement, instrument or document evidencing or securing
all or any part of [Borrowers'] [Trident] Obligations is due, notices of any and
all proceedings to collect from the maker, any endorser or any other guarantor
of all or any part of [Borrowers'] [Trident] Obligations, or from anyone else,
and, to the extent permitted by law, notices of exchange, sale, surrender
5
or other handling of any security or collateral given to Agent, for its benefit
and the ratable benefit of Lender Parties, to secure payment of
[Borrowers'] [Trident] Obligations.
III. MISCELLANEOUS
No delay on the part of Agent in the exercise of any right or remedy
shall operate as a waiver thereof, and no single or partial exercise by Agent of
any right or remedy shall preclude any further exercise thereof; nor shall any
modification or waiver of any of the provisions of this Corporate Guaranty be
binding upon Agent or Lender Parties, except as expressly set forth in a writing
duly signed and delivered on Agent's behalf by an authorized officer or agent of
Agent. Agent's or Lender Parties' failure at any time or times hereafter to
require strict performance by any Loan Party or Guarantor of any of the
provisions, warranties, terms and conditions contained in any promissory note,
security agreement, agreement, guaranty, instrument or document now or at any
time or times hereafter executed by any Loan Party or Guarantor and delivered to
Agent or Lender Parties shall not waive, affect or diminish any right of Agent
and Lender Parties at any time or times hereafter to demand strict performance
thereof and such right shall not be deemed to have been waived by any act or
knowledge of Agent or Lender Parties, or their respective agents, officers or
employees, unless such waiver is contained in an instrument in writing signed by
an officer or agent of Agent, and directed to a Loan Party or Guarantor, as
applicable, specifying such waiver. No waiver by Agent and Lender Parties of any
default shall operate as a waiver of any other default or the same default on a
future occasion, and no action by Agent or Lender Parties permitted hereunder
shall in any way affect or impair Agent's or Lender Parties' rights or the
obligations of Guarantor under this Corporate Guaranty. Any determination by a
court of competent jurisdiction of the amount of any principal or interest owing
by a Loan Party to Agent and Lender Parties shall be conclusive and binding on
Guarantor irrespective of whether Guarantor was a party to the suit or action in
which such determination was made.
This Corporate Guaranty shall be binding upon Guarantor and upon the
successors and permitted assigns of Guarantor and shall inure to the benefit of
Agent's and Lender Parties' respective successors and permitted assigns; all
references herein to a Loan Party shall be deemed to include its successors and
permitted assigns and all references herein to Agent or Lender Parties shall be
deemed to include their respective successors and permitted assigns. A
Borrower's successors and permitted assigns shall include, without limitation, a
receiver, trustee or debtor in possession of or for a Borrower. All references
to the singular shall be deemed to include the plural, and vice versa, where the
context so requires.
6
[In the event that the stock of Guarantor is sold pursuant to a sale
permitted pursuant to Section 11.2 of the Credit Agreement, Agent shall release
Guarantor from its obligations hereunder.]
Wherever possible each provision of this Corporate Guaranty shall be
interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Corporate Guaranty 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 Corporate Guaranty.
THIS CORPORATE GUARANTY SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF ILLINOIS. THIS CORPORATE
GUARANTY AND THE OTHER LOAN DOCUMENTS CONSTITUTE THE ENTIRE UNDERSTANDING WITH
RESPECT TO THE SUBJECT MATTER HEREOF AND SUPERSEDE ANY PRIOR AGREEMENTS, WRITTEN
OR ORAL, WITH RESPECT THERETO.
ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN
CONNECTION WITH, THIS CORPORATE GUARANTY, OR ANY COURSE OF CONDUCT, COURSE OF
DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF AGENT, LENDER
PARTIES OR GUARANTOR MAY BE BROUGHT AND MAINTAINED IN THE COURTS OF THE STATE OF
ILLINOIS OR IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF
ILLINOIS; PROVIDED, HOWEVER, THAT ANY SUIT SEEKING ENFORCEMENT AGAINST ANY
COLLATERAL OR OTHER PROPERTY MAY BE BROUGHT, AT AGENT'S OPTION, IN THE COURTS OF
ANY JURISDICTION WHERE SUCH COLLATERAL OR OTHER PROPERTY MAY BE FOUND. GUARANTOR
HEREBY EXPRESSLY AND IRREVOCABLY SUBMITS TO THE JURISDICTION OF THE COURTS OF
THE STATE OF ILLINOIS AND OF THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF ILLINOIS FOR THE PURPOSE OF ANY SUCH LITIGATION AS SET FORTH ABOVE.
GUARANTOR FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS BY REGISTERED
MAIL, POSTAGE PREPAID, OR BY PERSONAL SERVICE WITHIN OR WITHOUT THE STATE OF
ILLINOIS. GUARANTOR HEREBY EXPRESSLY AND IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY HAVE OR HEREAFTER MAY HAVE
TO THE LAYING OF VENUE OF ANY SUCH LITIGATION BROUGHT IN ANY SUCH COURT REFERRED
TO ABOVE AND ANY CLAIM THAT ANY SUCH LITIGATION HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM. TO THE EXTENT THAT GUARANTOR HAS OR HEREAFTER MAY ACQUIRE
ANY IMMUNITY FROM JURISDICTION OR ANY COURT OR FROM ANY LEGAL PROCESS (WHETHER
THROUGH SERVICE OR
7
NOTICE, ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT IN AID OF EXECUTION OR
OTHERWISE) WITH RESPECT TO ITSELF OR ITS PROPERTY, GUARANTOR HEREBY IRREVOCABLY
WAIVES SUCH IMMUNITY IN RESPECT OF ITS OBLIGATIONS UNDER THIS CORPORATE
GUARANTY.
AGENT, LENDER PARTIES AND GUARANTOR HEREBY KNOWINGLY, VOLUNTARILY
AND INTENTIONALLY WAIVE ANY RIGHTS THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT
OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH,
THIS CORPORATE GUARANTY, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS
(WHETHER ORAL OR WRITTEN) OR ACTIONS OF AGENT, LENDER PARTIES OR GUARANTOR.
GUARANTOR ACKNOWLEDGES AND AGREES THAT IT HAS RECEIVED FULL AND SUFFICIENT
CONSIDERATION FOR THIS PROVISION AND THAT THIS PROVISION IS A MATERIAL
INDUCEMENT FOR AGENT ENTERING INTO THE CREDIT AGREEMENT.
Guarantor hereby certifies that it has all necessary corporate
authority to grant and execute this Corporate Guaranty.
[The obligations of Guarantor are secured by, among other things,
certain Collateral Document(s) of Guarantor in favor of Agent and the Lender
Parties.]
8
IN WITNESS WHEREOF, this Corporate Guaranty has been duly executed
by Guarantor this ____ day of _____, ______.
[NAME OF GUARANTOR]
By _____________________________________
Its _________________________________
Address: _______________________________
_______________________________
_______________________________
9
EXHIBIT E
FORM OF JOINDER AGREEMENT
THIS JOINDER AGREEMENT dated as of ___________ is BETWEEN:
_________________________________, a ________________ organized under the
laws of _______________ (hereinafter called the "New [Dura] [Trident]
Borrower"),
- and -
the various financial institutions signatory hereto as Lenders (the
"Lenders"), and BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, as
Agent (hereinafter called the "Agent").
WHEREAS, Dura Automotive Systems, Inc. ("DASI"), Dura Operating Corp.
("Dura"), Trident Automotive plc ("Trident") and certain other Subsidiaries of
DASI and Dura have entered into an Amended and Restated Credit Agreement dated
as of __________, 1999 (as the same may be amended, supplemented, restated or
otherwise modified from time to time, the "Credit Agreement") with the Lenders
and the Agent;
WHEREAS, Dura and the New [Dura] [Trident] Borrower have requested that
the New [Dura] [Trident] Borrower be permitted to join in the Credit Agreement
as a Borrower thereunder pursuant to Section 14.21 of the Credit Agreement;
WHEREAS, the New [Dura] [Trident] Borrower under the laws relating thereto
is duly authorized to enter into the Credit Agreement and all things necessary,
including any necessary consents of shareholders of the New [Dura] [Trident]
Borrower, have been done and performed to make the Credit Agreement a valid and
binding agreement of the New [Dura] [Trident] Borrower;
WHEREAS, the foregoing recital is made as representations and statements
of fact by the New [Dura] [Trident] Borrower and not by the Lenders or the
Agent;
NOW THEREFORE THIS AGREEMENT WITNESSETH that in consideration of the
premises and other good and valuable consideration, the receipt and sufficiency
whereof are hereby acknowledged, the New [Dura] [Trident] Borrower covenants and
agrees with the Lenders and the Agent as follows:
ARTICLE I
INTERPRETATION
1.1 Definitions
In this Agreement:
(1) any defined term used herein and not defined herein shall have the
meaning given to such term in the Credit Agreement; and
(2) the rules of interpretation set forth in Article I of the Credit
Agreement apply to this Joinder Agreement.
1.2 Headings, Etc.
The division of this Agreement into Articles, Sections and subsections and
the insertion of headings are for convenience of reference only and shall
not affect the construction or interpretation of this Agreement.
ARTICLE II
JOINDER AGREEMENT
2.1 Warranties.
The New [Dura] [Trident] Borrower hereby makes to the Lenders and the
Agent the representations set forth in Article IX of the Credit Agreement with
itself as a [Dura] [Trident] Borrower, a Subsidiary and a Loan Party.
2.2 Undertaking
Effective as of the date hereof, the New [Dura] [Trident] Borrower
undertakes all obligations of a [Dura] [Trident] Borrower (including, without
limitation, to execute and deliver a Guaranty and Collateral Documents) under
the Credit Agreement.
ARTICLE III
MISCELLANEOUS
3.1 Notice
All communications and notices provided for under the Credit Agreement to
the New [Dura] [Trident] Borrower shall be addressed as follows:
2
_____________________
_____________________
_____________________
Attention: ___________________
Telephone: ___________________
Facsimile: ___________________
with a copy to:
Dura Operating Corp.
Attention: ___________________
Telephone: ___________________
Facsimile: ___________________
or at such other address as the New [Dura] [Trident] Borrower may designate in
accordance with Section 14.2 of the Credit Agreement.
3.2 Applicable Law
This Agreement shall be governed by and construed in accordance with the
internal laws of the State of Illinois.
IN WITNESS WHEREOF the New [Dura] [Trident] Borrower has duly executed
this Joinder Agreement as of the date first set forth above.
[NAME OF New [Dura] [Trident] Borrower]
By: ____________________________________
Name:
Title:
DURA OPERATING CORP.
By: ____________________________________
Name:
Title:
Accepted:
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as
Agent
By: _________________________________
Name:
Title:
[LENDERS]
3
EXHIBIT F
FORM OF NOTE
_____________, _____
FOR VALUE RECEIVED, the undersigned (the "Borrower"), hereby
promises to pay to the order of _________________________________ (the "Lender")
the aggregate unpaid principal amount of all _________ Loans made by the Lender
to the Borrower pursuant to the Amended and Restated Credit Agreement, dated as
of March 19, 1999 (as amended or otherwise modified from time to time, the
"Credit Agreement"), among Dura Automotive Systems, Inc., [Dura Operating
Corp.] [the Borrower], certain subsidiaries of [Dura Operating Corp.] [the
Borrower] [(including the Borrower)], various financial institutions (including
the Lender), Bank of America National Trust and Savings Association, as Agent,
on the dates and in the amounts provided in the Credit Agreement. The Borrower
further promises to pay interest on the unpaid principal amount of the Loans
evidenced hereby from time to time at the rates, on the dates, and otherwise as
provided in the Credit Agreement.
The Lender is authorized to endorse the amount and the date on which
each Loan is made and each payment of principal with respect thereto on the
schedules annexed hereto and made a part hereof, or on continuations thereof
which shall be attached hereto and made a part hereof; provided that any failure
to endorse such information on such schedule or continuation thereof shall not
in any manner affect any obligation of the Borrower under the Credit Agreement
and this Promissory Note (this "Note").
This Note is one of the Notes referred to in, and is entitled to the
benefits of, the Credit Agreement, which Credit Agreement, among other things,
contains provisions for the securing of this Note pursuant to Collateral
Documents (as defined in the Credit Agreement), for acceleration of the maturity
hereof upon the happening of certain stated events and also for prepayments on
account of principal hereof prior to the maturity hereof upon the terms and
conditions therein specified.
Terms defined in the Credit Agreement are used herein with their
defined meanings therein unless otherwise defined herein.
This Note shall be governed by, and construed and interpreted in accordance
with, the laws of the State of Illinois applicable to contracts made and to be
performed entirely within such State.
[NAME OF BORROWER]
By: ____________________________________
Title: _________________________________
2
Schedule A to Note
[INSERT FACILITY NAME] LOANS AND REPAYMENTS OF [INSERT FACILITY NAME] LOANS
(2) (3)
Amount of Amount of
[INSERT [INSERT (4)
(1) FACILITY NAME FACILITY NAME] Notation
Date Loan Loan Repaid Made By
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EXHIBIT H
FORM OF ASSIGNMENT AND ACCEPTANCE AGREEMENT
This ASSIGNMENT AND ACCEPTANCE AGREEMENT (this "Assignment and
Acceptance") dated as of __________, ____ is made between
______________________________ (the "Assignor") and __________________________
(the "Assignee").
RECITALS
The Assignor is party to the Amended and Restated Credit Agreement
dated as of March 19, 1999 (as amended, modified, supplemented or renewed, the
"Credit Agreement") among Dura Automotive Systems, Inc. ("DASI"), Dura Operating
Corp. ("Dura"), certain subsidiaries of DASI, Bank of America National Trust and
Savings Association, as Agent (the "Agent"), Issuing Lender and Swing Line
Lender, BA Australia Limited, as Australian Lender, Bank of America Canada, as
Canadian Lender, and the several financial institutions from time to time party
thereto (including the Assignor, the "Lenders"). Terms defined in the Credit
Agreement and not defined in this Assignment and Acceptance are used herein as
defined in the Credit Agreement.
The Assignor wishes to assign to the Assignee [part of the] [all]
rights and obligations of the Assignor under the Credit Agreement in respect of
the Loans, the Assignor's Commitments and the L/C Obligations and the other
rights and obligations of the Assignor thereunder, and the Assignee wishes to
accept assignment of such rights and to assume such obligations from the
Assignor, in each case on the terms and subject to the conditions of this
Assignment and Acceptance.
NOW, THEREFORE, in consideration of the foregoing and the mutual
agreements contained herein, the parties hereto agree as follows:
1. Assignment and Acceptance.
(a) Subject to the terms and conditions of this Assignment and
Acceptance, (i) the Assignor hereby sells, transfers and assigns to the
Assignee, and (ii) the Assignee hereby purchases, assumes and undertakes from
the Assignor, without recourse and without representation or warranty (except as
provided in this Assignment and Acceptance),
(i) [U.S. $________ of the Assignor's Interim Term Loan,] [U.S.
$________ of the Assignor's Tranche A Term Loans,] [U.S. $________ of the
Assignor's Tranche B Term Loan,] [; and]
(ii) [__% of the Assignor's Revolving Commitment, together with a
corresponding portion of the Assignor's outstanding Revolving Group Loans,
the Assignor's rights in respect of its participation (whether funded or
unfunded) in Australian Loans, Canadian Loans and Swing Line Loans and in
respect of L/C Obligations of the Borrowers and the Assignor's obligations
in respect of its participation (whether funded or unfunded) in Australian
Loans, Canadian Loans and Swing Line Loans and in respect of L/C
Obligations of the Borrowers; and]
(iii) all related rights, benefits, obligations, liabilities and
indemnities of the Assignor under and in connection with the Credit
Agreement and the other Loan Documents
(all of the foregoing being herein called the "Assigned Rights and
Obligations").
(b) With effect on and after the Effective Date (as defined in
Section 5 hereof), the Assignee shall be a party to the Credit Agreement and
succeed to 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, with a Pro Rata Share equal
to _______%. The Assignee agrees that it will perform in accordance with their
terms all of the obligations which by the terms of the Credit Agreement are
required to be performed by it as a Lender. It is the intent of the parties
hereto that (i) as of the Effective Date, the Pro Rata Share of the Assignor
shall be reduced to _______%, and (ii) the Assignor shall relinquish its rights
and be released from its obligations under the Credit Agreement to the extent
such obligations have been assumed by the Assignee; provided, however, that the
Assignor shall not relinquish its rights under Article VII or Sections 14.4 or
14.5 of the Credit Agreement in respect of the Assigned Rights and Obligations
to the extent such rights relate to the time prior to the Effective Date.
(c) After giving effect to the assignment and assumption set forth
herein, on the Effective Date the Assignee's and the Assignor's respective
Commitments, outstanding Loans and participations in Loans and L/C Obligations
will be as set forth on Annex I.
2. Payments.
(a) As consideration for the sale, assignment and transfer
contemplated in Section 1 hereof, the Assignee shall pay to the Assignor on the
Effective Date in immediately available funds an amount equal to [SPECIFY
AMOUNTS IN APPLICABLE CURRENCIES], representing the principal amount of all
outstanding and funded Group Loans and participations included within the
Assigned Rights and Obligations.
2
(b) The [Assignor] [Assignee] further agrees to pay to the Agent a
processing fee in the amount specified in Section 14.8(a) of the Credit
Agreement.
3. Reallocation of Payments.
Any interest, fees and other payments accrued to the Effective Date with
respect to the Assigned Rights and Obligations shall be for the account of the
Assignor. Any interest, fees and other payments accrued on and after the
Effective Date with respect to the Assigned Rights and Obligations shall be for
the account of the Assignee. Each of the Assignor and the Assignee agrees that
it will hold in trust for the other party any interest, fees and other amounts
which it may receive to which the other party is entitled pursuant to the
preceding two sentences and pay to the other party any such amounts which it may
receive promptly upon receipt.
4. Independent Credit Decision.
The Assignee (a) acknowledges that it has received a copy of the Credit
Agreement and the Schedules and Exhibits thereto, together with copies of the
most recent financial statements referred to in Section 10.1 of the Credit
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
Assignment and Acceptance; and (b) agrees that it will, independently and
without reliance upon the Assignor, 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 Credit Agreement.
5. Effective Date; Notices.
(a) As between the Assignor and the Assignee, the effective date for
this Assignment and Acceptance shall be ______________ (the "Effective Date");
provided that the following conditions precedent have been satisfied on or
before the Effective Date:
(i) this Assignment and Acceptance shall be executed and
delivered by the Assignor and the Assignee;
(ii) the consent of DASI and the Agent, if required for an
effective assignment of the Assigned Rights and Obligations by the Assignor to
the Assignee under Section 14.8(a) of the Credit Agreement, shall have been duly
obtained and shall be in full force and effect as of the Effective Date;
(iii) the Assignee shall pay to the Assignor all amounts due
to the Assignor under this Assignment and Acceptance; and
3
(iv) the processing fee referred to in Section 2(b) hereof
shall have been paid to the Agent.
(b) Promptly following the execution of this Assignment and
Acceptance, the Assignor shall deliver to the Borrowers, the Issuing Lender, the
Swing Line Lender, the Australian Lender, the Canadian Lender and the Agent, for
acknowledgment by the Agent, a Notice of Assignment substantially in the form
attached hereto as Schedule 1.
[6. Agent. INCLUDE ONLY IF ASSIGNOR IS THE AGENT]
(a) The Assignee hereby appoints and authorizes the Assignor to take
such action as agent on its behalf and to exercise such powers under the Credit
Agreement as are delegated to such Agent by the Lenders pursuant to the terms of
the Credit Agreement.
(b) The Assignee shall assume no duties or obligations held by the
Assignor in its capacity as Agent under the Credit Agreement.]
[6. Issuing Lender. [INCLUDE ONLY IF ASSIGNOR IS ISSUING LENDER.] The
Assignee shall assume no duties or obligations held by the Assignor in its
capacity as Issuing Lender under the Credit Agreement.]
[6. Australian Lender. [INCLUDE ONLY IF ASSIGNOR IS AUSTRALIAN LENDER.]
The Assignee shall assume no duties or obligations held by the Assignor in its
capacity as Australian Lender under the Credit Agreement.]
[6. Canadian Lender. [INCLUDE ONLY IF ASSIGNOR IS CANADIAN LENDER.] The
Assignee shall assume no duties or obligations held by the Assignor in its
capacity as Canadian Lender under the Credit Agreement.]
[6. Swing Line Lender. [INCLUDE ONLY IF ASSIGNOR IS SWING LINE LENDER.]
The Assignee shall assume no duties or obligations held by the Assignor in its
capacity as Swing Line Lender under the Credit Agreement.]
7. Representations and Warranties.
(a) The Assignor represents and warrants that (i) it is the legal
and beneficial owner of the interest being assigned by it hereunder and that
such interest is free and clear of any Lien or other adverse claim; (ii) it is
duly organized and existing and it has the full power and authority to take, and
has taken, all action necessary to execute and deliver this Assignment and
Acceptance and any other documents required or permitted to be executed or
delivered by it in connection with this Assignment and Acceptance
4
and to fulfill its obligations hereunder; (iii) no notices to, or consents,
authorizations or approvals of, any Person are required (other than any already
given or obtained) for its due execution, delivery and performance of this
Assignment and Acceptance, and apart from any agreements or undertakings or
filings required by the Credit Agreement, no further action by, or notice to, or
filing with, any Person is required of it for such execution, delivery or
performance; and (iv) this Assignment and Acceptance has been duly executed and
delivered by it and constitutes the legal, valid and binding obligation of the
Assignor, enforceable against the Assignor in accordance with the terms hereof,
subject, as to enforcement, to bankruptcy, insolvency, moratorium,
reorganization and other laws of general application relating to or affecting
creditors' rights and to general equitable principles.
(b) The Assignor makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations
made in or in connection with the Credit Agreement or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of the Credit
Agreement or any other instrument or document furnished pursuant thereto. The
Assignor makes no representation or warranty in connection with, and assumes no
responsibility with respect to, the solvency, financial condition or statements
of the Borrowers or any other Loan Party, or the performance or observance by
the Borrowers or any other Loan Party of any of their obligations under the
Credit Agreement or any other instrument or document furnished in connection
therewith.
(c) The Assignee represents and warrants that (i) it is duly
organized and existing and it has full power and authority to take, and has
taken, all action necessary to execute and deliver this Assignment and
Acceptance and any other documents required or permitted to be executed or
delivered by it in connection with this Assignment and Acceptance, and to
fulfill its obligations hereunder; (ii) no notices to, or consents,
authorizations or approvals of, any Person are required (other than any already
given or obtained) for its due execution, delivery and performance of this
Assignment and Acceptance; and apart from any agreements or undertakings or
filings required by the Credit Agreement, no further action by, or notice to, or
filing with, any Person is required of it for such execution, delivery or
performance; (iii) this Assignment and Acceptance has been duly executed and
delivered by it and constitutes the legal, valid and binding obligation of the
Assignee, enforceable against the Assignee in accordance with the terms hereof,
subject, as to enforcement, to bankruptcy, insolvency, moratorium,
reorganization and other laws of general application relating to or affecting
creditors' rights and to general equitable principles; and (iv) it is an
Eligible Assignee.
5
8. Further Assurances.
The Assignor and the Assignee each hereby agree to execute and deliver
such other instruments, and take such other action, as either party may
reasonably request in connection with the transactions contemplated by this
Assignment and Acceptance, including the delivery of any notices or other
documents or instruments to DASI or the Agent which may be required in
connection with the assignment and assumption contemplated hereby.
9. Miscellaneous.
(a) Any amendment or waiver of any provision of this Assignment and
Acceptance shall be in writing and signed by the parties hereto. No failure or
delay by either party hereto in exercising any right, power or privilege
hereunder shall operate as a waiver thereof and any waiver of any breach of the
provisions of this Assignment and Acceptance shall be without prejudice to any
rights with respect to any other or further breach thereof.
(b) All payments made hereunder shall be made without any set-off or
counterclaim.
(c) The Assignor and the Assignee shall each pay its own costs and
expenses incurred in connection with the negotiation, preparation, execution and
performance of this Assignment and Acceptance.
(d) This Assignment and Acceptance may be executed in any number of
counterparts and all of such counterparts taken together shall be deemed to
constitute one and the same instrument
(e) THIS ASSIGNMENT AND ACCEPTANCE SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF ILLINOIS. The Assignor and
the Assignee each irrevocably submits to the non-exclusive jurisdiction of any
State or Federal court sitting in Cook County, Illinois over any suit, action or
proceeding arising out of or relating to this Assignment and Acceptance and
irrevocably agrees that all claims in respect of such action or proceeding may
be heard and determined in such Illinois State or Federal court. Each party to
this Assignment and Acceptance hereby irrevocably waives, to the fullest extent
it may effectively do so, the defense of an inconvenient forum to the
maintenance of such action or proceeding.
(f) THE ASSIGNOR AND THE ASSIGNEE EACH HEREBY KNOWINGLY, VOLUNTARILY
AND INTENTIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF
ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH
THIS ASSIGNMENT AND ACCEPTANCE, THE CREDIT AGREEMENT, ANY RELATED DOCUMENT OR
AGREEMENT OR ANY COURSE OF CONDUCT, COURSE OF DEALING OR STATEMENT (WHETHER ORAL
OR WRITTEN).
6
IN WITNESS WHEREOF, the Assignor and the Assignee have caused this
Assignment and Acceptance to be executed and delivered by their duly authorized
officers as of the date first above written.
[ASSIGNOR]
By: ____________________________________
Title: _________________________________
Address:
[ASSIGNEE]
By: ____________________________________
Title: _________________________________
Address:
7
ANNEX I
Immediately
Before Effective
Date:
Assignor:
Assignee:
On and after
Effective Date:
Assignor:
Assignee:
SCHEDULE 1
NOTICE OF ASSIGNMENT AND ACCEPTANCE
_______________, _______
To: Bank of America National Trust
and Savings Association, as Agent
BA Australia Limited,
as Australian Lender
Bank of America Canada,
as Canadian Lender
Bank of America National Trust
and Savings Association,
as Swing Line Lender
and Issuing Lender
Dura Automotive Systems, Inc.
Ladies and Gentlemen:
We refer to the Amended and Restated Credit Agreement, dated as of March
19, 1999 (as amended, modified, supplemented or renewed from time to time, the
"Credit Agreement"), among Dura Automotive Systems, Inc. ("DASI"), Dura
Operating Corp. ("Dura"), certain subsidiaries of Dura, Bank of America National
Trust and Savings Association, as Agent (the "Agent"), Issuing Lender and Swing
Line Lender, BA Australia Limited, as Australian Lender, Bank of America Canada,
as Canadian Lender, and the other Lenders referred to therein. Terms defined in
the Credit Agreement are used herein as therein defined.
1. We hereby give you notice of, and request your consent to, the
assignment by __________________ (the "Assignor") to _______________ (the
"Assignee") pursuant to the Assignment and Acceptance Agreement attached hereto
(the "Assignment and Acceptance") of:
(i) [U.S. $________ of the Assignor's Interim Term Loan,] [U.S.
$________ of the Assignor's Tranche A Term Loans,] [U.S. $________ of the
Assignor's Tranche B Term Loan,] [; and]
(ii) [__% of the Assignor's Revolving Commitment, together with a
corresponding portion of the Assignor's outstanding Revolving Group Loans,
the Assignor's rights in respect of its participation (whether funded or
unfunded) in Australian Loans,
Canadian Loans and Swing Line Loans and in respect of L/C Obligations of
the Borrowers and the Assignor's obligations in respect of its
participation (whether funded or unfunded) in Australian Loans, Canadian
Loans and Swing Line Loans and in respect of L/C Obligations of the
Borrowers; and]
(iii) all related rights, benefits, obligations, liabilities and
indemnities of the Assignor under and in connection with the Credit
Agreement and the other Loan Documents
After giving effect to such assignment and assumption, the Assignee shall
have a Pro Rata Share equal to _______%. As of the Effective Date, the Pro Rata
Share of the Assignor shall be reduced to __________%.
After giving effect to the assignment and assumption, the Assignee's and
the Assignor's respective Commitments, outstanding Loans and participations in
Loans and L/C Obligations will be as set forth on Annex I.
2. The Assignee agrees that, upon receiving the consent, if applicable, of
the Agent and DASI to such assignment, the Assignee will be bound by the terms
of the Credit Agreement as fully and to the same extent as if the Assignee were
the Lender originally holding such interest in the Credit Agreement.
3. The following administrative details apply to the Assignee:
(A) Notice Address:
Assignee name: ______________________________________
Address: ____________________________________________
____________________________________________
____________________________________________
Attention: __________________________________________
Telephone: (___) ____________________________________
Telecopier: (___) ___________________________________
Telex (Answerback): _________________________________
(B) Payment Instructions:
Account No.: ________________________________________
At: ____________________________________________
____________________________________________
____________________________________________
Reference: __________________________________________
Attention: __________________________________________
2
(C) Correspondent Bank for Assignee:
(i) Notice Address for Correspondent Bank:
Correspondent Bank name: ____________________________
Address: ____________________________________________
Attention: __________________________________________
Telephone: (___) ____________________________________
Telecopier: (___) ___________________________________
Telex (Answerback): ________________________________
(ii) Payment Instructions for Correspondent Bank:
Account No.: ________________________________________
At: ____________________________________________
____________________________________________
____________________________________________
Reference: __________________________________________
Attention: __________________________________________
4. You are entitled to rely upon the representations, warranties and
covenants of each of the Assignor and the Assignee contained in the Assignment
and Acceptance.
3
IN WITNESS WHEREOF, the Assignor and the Assignee have caused this Notice
of Assignment and Acceptance to be executed by their respective duly authorized
officials, officers or agents as of the date first above mentioned.
Very truly yours,
[NAME OF ASSIGNOR]
By: ____________________________________
Title: _________________________________
By: ____________________________________
Title: _________________________________
[NAME OF ASSIGNEE]
By: ____________________________________
Title: _________________________________
By: ____________________________________
Title: _________________________________
ACKNOWLEDGED AND ASSIGNMENT
CONSENTED TO:
DURA AUTOMOTIVE SYSTEMS, INC.
By: _________________________________
Its: ________________________________
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as Agent
By: _________________________________
Its: ________________________________
4
EXHIBIT I
FORM OF LENDER CERTIFICATE
Please refer to the Amended and Restated Credit Agreement dated as
of March 19, 1999 among Dura Automotive Systems, Inc., various subsidiaries
thereof, various financial institutions and Bank of America National Trust and
Savings Association, as Agent (as amended, supplemented or otherwise modified
from time to time, the "Credit Agreement"). Pursuant to the provisions of
subsection 7.1(f)(i)(A) of the Credit Agreement, the undersigned hereby
certifies that it is not a "bank" as such term is defined in Section
881(c)(3)(A) of the Internal Revenue Code of 1986, as amended.
[NAME OF LENDER]
By: ____________________________________
Its: ___________________________________
THIS DESIGNATION OF OTHER QUALIFIED SECURED AGREEMENT is made as of March
19, 1999 by Dura Automotive Systems, Inc. ("DASI") to Bank of America National
Trust and Savings Association, as Agent (the "Agent"), in respect of Barclays
Bank PLC (the "New Other Qualified Secured Creditor").
DASI, certain of its subsidiaries, various financial institutions and Bank
of America National Trust and Savings Association as Agent are parties to a
certain Amended and Restated Credit Agreement dated as of March 19, 1999
(together with any amendments or supplements thereto or restatements or other
modifications thereof, the "Credit Agreement"; capitalized terms not otherwise
defined herein are used herein as defined in the Credit Agreement) in connection
with which certain Loan Parties have provided guaranties and security interests
to the Agent and the Lender Parties. The definition of "Obligations" in Section
1.1 of the Credit Agreement contemplates that DASI may designate Other Qualified
Secured Agreements which shall be entitled to participate in the collateral and
guaranties provided in connection with the Credit Agreement.
The New Other Qualified Secured Creditor and certain Loan Parties and
related entities have entered into certain working capital and other short term
facility agreements as follows (said agreements, as the same may be amended,
modified or otherwise supplemented from time to time, being the "New Other
Qualified Secured Agreements"):
Loan Parties and Related Entities under Agreement dated December 30, 1998
Adwest Automotive Plc
Adwest Steering Ltd
Adwest International Ltd
Adwest Properties Ltd
Adwest Western Thomson Ltd
Adwest Bowden TSK Ltd
Adwest Driver Systems Ltd
Rearsby Group Ltd
Loan Parties and Related Entities under Agreements dated June 5, 1998,
October 16, 1998 and December 17, 1998
Heidemann Novel Iberica SA (to be renamed Adwest
Heidemann Iberica SA)
Loan Parties and Related Entities under Agreement dated March 11, 1998
Adwest France SA
Adwest Bowden SA
Adwest OCI SA
Adwest Dauphinoise Thomson SA
For purposes of the definition of "Obligations" under the Credit
Agreement, the maximum aggregate principal Dollar Equivalent Amount of
Obligations under the New Other Qualified Secured Agreements shall be U.S.
$40,000,000 (it being understood that the total principal obligations under such
New Other Qualified Secured Agreements may from time to time exceed the Dollar
Equivalent Amount of U.S. $40,000,000, but that any such excess shall not
constitute Obligations).
The New Other Qualified Secured Creditor is a Lender or an Affiliate of a
Lender. The maximum aggregate principal Dollar Equivalent amount of Obligations
under all existing Other Qualified Secured Agreements and the New Other
Qualified Secured Agreements is less than or equal to U.S.$50,000,000.
DASI hereby designates the New Other Qualified Secured Agreements as Other
Qualified Secured Agreements under the Credit Agreement with an aggregate
maximum principal Dollar Equivalent amount of obligations of U.S.$40,000,000.
This designation may not be revoked without the written consent of the New Other
Qualified Secured Creditor.
The address of the New Other Qualified Secured Creditor is Barclays Bank
PLC, 54 Lombard Street, London, England, Attention: John Davey.
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IN WITNESS WHEREOF, DASI has caused this Designation to be duly executed
and delivered by its proper and duly authorized officer or representative as of
the day and year first above written.
DURA AUTOMOTIVE SYSTEMS, INC.
By: ____________________________________
Title: _________________________________
Acknowledged:
BANK OF AMERICA NATIONAL
TRUST AND SAVINGS ASSOCIATION,
as Agent
By: _________________________________
Title: ______________________________
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