Exhibit 10.1
THIRD AMENDMENT
TO
CREDIT AGREEMENT
THIRD
AMENDMENT, dated as of June 20, 2008 (this “
Amendment ”), to the Senior Secured Super-Priority
Debtor in Possession Term Loan Credit and Guaranty Agreement, dated
as of January 30, 2008, as amended by the First Amendment to the
Credit Agreement, dated as of March 18, 2008, and the Second
Amendment to the Credit Agreement, dated as of May 29, 2008
(as further amended, restated, supplemented or otherwise modified
from time to time, the “ Credit Agreement ”), by
and among Dura Operating Corp., a Delaware corporation, a debtor
and debtor in possession under Chapter 11 of the Bankruptcy
Code (“ Company ”), Dura Automotive Systems,
Inc., a Delaware corporation , a debtor and debtor in possession
under Chapter 11 of the Bankruptcy Code (“
Holdings ”), certain domestic Subsidiaries of Holdings
and the Company, each a debtor and debtor in possession under
Chapter 11 of the Bankruptcy Code, as Guarantors, the Lenders
party thereto, Ableco Finance LLC, as administrative agent,
collateral agent, sole book runner, lead arranger, syndication
agent, and documentation agent and Bank of America, N.A., as
Issuing Bank. All capitalized terms used herein and not otherwise
defined herein are used herein as defined in the Credit
Agreement.
W I T N E S S
E T H
WHEREAS,
the Credit Parties have notified the Lenders and the Agents that
the effective date of the New Plan will not occur, and the
transactions contemplated as part of the New Plan will not have
closed, in each case, on or before June 20, 2008, and such
failure would constitute an Event of Default under the Credit
Agreement; and
WHEREAS,
the Credit Parties, the Lenders and the Agents desire to amend the
Credit Agreement to, inter alia, modify certain terms and
conditions of the Credit Agreement as specifically set forth in
this Amendment, including, without limitation, extending the
deadline to have the New Plan become effective.
NOW
THEREFORE, the Credit Parties, the Lenders and the Agents hereby
agree as follows:
1.
Section 5.15(f) . Section 5.15(f) of the Credit
Agreement is hereby amended by replacing the reference therein to
“June 20, 2008,” with “June 25,
2008”.
2.
Section 6.1(1) . Section 6.1(1) of the Credit
Agreement is hereby amended and restated in its entirety to read as
follows:
“(l)
Indebtedness of any Foreign Subsidiary of Holdings that is not a
Credit Party in connection with account factoring arrangements not
to exceed at any time €19,000,000 outstanding; provided
, that such amount shall be permitted to be increased to
€74,000,000 so long as a portion of the proceeds of such
account factoring arrangements are used to repay the Obligations in
full on or before June 25, 2008;”
3.
Conditions to Effectiveness . This Amendment shall become
effective only upon satisfaction in full of the following
conditions precedent (the first date upon which all such conditions
have been satisfied being herein called the “ Amendment
Effective Date ”):
(a) The
Administrative Agent shall have received counterparts of this
Amendment that bear the signatures of each Credit Party, the
Administrative Agent and the Requisite Lenders.
(b) The
representations and warranties contained herein, in Section 4
of the Credit Agreement and in each other Credit Document are true
and correct in all material respects on and as of the Amendment
Effective Date as though made on and as of such date, except to the
extent that any such representation or warranty expressly relates
solely to an earlier date (in which case such representation or
warranty shall be true and correct in all material respects on and
as of such earlier date).
(c) No
Default or Event of Default shall have occurred and be continuing
on the Amendment Effective Date or would result from this Amendment
becoming effective in accordance with its terms.
(d) All
legal matters incident to this Amendment shall be reasonably
satisfactory to the Administrative Agent and its counsel.
4.
Representations and Warranties . Each of the Credit Parties
represents and warrants to the Agents and the Lenders as
follows:
(a)
Organization; Requisite Power and Authority; Qualification .
Each Credit Party (a) is duly organized, validly existing and (to
the extent such concept is relevant) in good standing under the
laws of its jurisdiction of organization, (b) subject to the
entry of the Orders (as applicable), has all requisite power and
authority to enter into this Amendment, and (c) is qualified
to do business and in good standing in every jurisdiction where its
assets are located and wherever necessary to carry out its business
and operations, except in jurisdictions where the failure to be so
qualified or (to the extent such concept is relevant) in good
standing could not be reasonably expected to have, a Material
Adverse Effect.
(b)
Authorization, Etc. Subject to the entry of the Orders, the
execution, delivery and performance by each Credit Party of this
Amendment (i) have been duly authorized by all necessary
action on the part of each Credit Party that is a party thereto,
and (ii) do not and will not (A) violate any provision of
any material law or any material governmental rule or regulation
applicable to Holdings or any of its Subsidiaries, any of the
Organizational Documents of Holdings or any of its Subsidiaries, or
any order, judgment or decree of any court or other agency of
government binding on Holdings or any of its Subsidiaries;
(B) conflict with, result in a breach of or constitute (with
due notice or lapse of time or both) a default under any Material
Contract of Holdings or any of its Subsidiaries; (C) result in
or require the creation or imposition of any Lien upon any of the
properties or assets of Holdings or any of its Subsidiaries (other
than any Liens created under any of the Credit Documents in favor
of Collateral Agent, on behalf of Secured Parties, and the Liens
securing the Revolving Credit Obligations); or (D) require any
material approval of stockholders, members or partners or any
material approval
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