CONSENT AND SIXTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
CONSENT
AND SIXTH AMENDMENT TO AMENDED AND RESTATED CREDIT
AGREEMENT
This
Consent and Sixth Amendment to Amended and Restated Credit Agreement
("Amendment") is dated as of October 18, 2005, and is by and among General
Electric Capital Corporation, a Delaware corporation, individually as a Lender
and as Agent for the Lenders, SportRack, LLC, a Delaware limited liability
company ("SportRack US Borrower"), Valley Industries, LLC, a Delaware limited
liability company ("Valley US Borrower" and, together with SportRack US
Borrower, "US Borrowers"), Brink International B.V., a private company with
limited liability (besloten
vennootschap met beperkte aansprakelijkheid)
incorporated under the laws of The Netherlands, having its corporate seat
(statutaire
zetel)
in
Staphorst, The Netherlands and registered with the Chamber of Commerce
(Xxxxx
van Koophandel)
in Regio
Zwolle under number 05058752 ("European Borrower" and, together with US
Borrowers, "Borrowers"), the other persons designated as "Credit Parties" on
the
signature pages hereof, and the Lenders which are signatories
hereto.
W
I T
N E S S E T H:
WHEREAS,
pursuant to an Amended and Restated Credit Agreement dated as of May 23, 2003,
by and among Agent, the Lenders from time to time party thereto, Borrowers
and
the other Credit Parties from time to time party thereto (as amended or
otherwise modified from time to time, the "Credit Agreement"; capitalized terms
used herein and not otherwise defined herein shall have the meanings ascribed
to
such terms in the Credit Agreement), Agent and the Lenders agreed, subject
to
the terms and provisions thereof, to provide certain loans and other financial
accommodations to Borrowers;
WHEREAS,
Borrowers
desire to have European Borrower enter into the
Management Option Subscription Agreement dated as of September 30, 2005 (the
"Rengelik Subscription Agreement"), between European Borrower and Wim Rengelik,
an individual, as optionholder ("Optionholder"), pursuant to which Optionholder
will acquire options (the "Rengelik Options") to acquire an amount not in excess
of 2,094 ordinary shares of European Borrower (the "Rengelik
Option Purchase");
WHEREAS,
Borrowers desire to have European Borrower enter into the Option Repurchase
Agreement dated as of September 30, 2005 (the "Rengelik Repurchase Agreement")
between European Borrower and Optionholder, pursuant to which the Rengelik
Options, subject to certain conditions and circumstances specified therein,
are
made subject to a right of repurchase by European Borrower or a right and
obligation to transfer to an ultimate purchaser designated by European
Borrower;
WHEREAS,
absent
the consent of Agent and the Requisite Lenders, the consummation of the
Rengelik
Option
Purchase would violate the Credit Agreement, and accordingly Borrowers have
requested that Agent and the Requisite Lenders consent to the issuance of the
Rengelik
Options
and Rengelik
Option
Purchase; and
WHEREAS,
in addition to the foregoing, Borrowers have requested that Agent and the
Requisite Lenders agree to amend the Credit Agreement in certain respects,
as
set forth below.
NOW,
THEREFORE, in consideration of the premises and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the
parties hereto agree as follows:
1. Consent.
In
reliance upon the representations and warranties set forth in Section 4 below
and subject to the conditions to effectiveness set forth in Section 3 below,
Agent and the Lenders signatory hereto hereby consent to the issuance of the
Rengelik Options and the Rengelik Option Purchase in accordance with the
Rengelik Option Purchase Documents (as defined below). The foregoing consent
is
a limited consent, which shall be effective only with respect to the specific
facts set forth above. Such limited consent shall not be deemed to constitute
a
consent or waiver of any term, provision or condition of the Credit Agreement
with respect to any transaction or circumstance other than the specific facts
set forth above or to prejudice any right or remedy that Agent or Lenders may
now have or may have in the future under or in connection with any of the Loan
Documents.
2. Amendments
to Credit Agreement.
In
reliance upon the representations and warranties set forth in Section 4 below
and subject to the conditions to effectiveness set forth in Section 3 below,
the
Credit Agreement is hereby amended as follows:
(a) The
definition of "Change of Control" set forth in Annex A to the Credit Agreement
is hereby amended by amending and restating clause (j) thereof, as
follows:
"or
(j) (x)
there
exists a "Brink Change of Control" or "Consolidated Change of Control" each
as
defined in the Option Repurchase Agreement dated as of May 17, 2005 by and
between European Borrower and Xxxxxx XxXxxxx, as such agreement may be amended
from time to time, solely to the extent such agreement remains in effect or
(y)
there exists a "Brink Change of Control" or "Consolidated Change of Control"
each as defined in the Option Repurchase Agreement dated as of September 30,
2005 by and between European Borrower and Wim Rengelik, as such agreement may
be
amended from time to time, solely to the extent such agreement remains in
effect."
3. Conditions.
The
effectiveness of this Amendment is subject to the satisfaction of the following
conditions precedent:
(a) Agent
shall have received this Amendment executed by Credit Parties and Requisite
Lenders;
(b) The
Credit Parties shall have executed and delivered or shall have caused to be
executed and delivered such other agreements, instruments and documents as
Agent
may reasonably request, each of which shall be in form and substance reasonably
satisfactory to Agent;
(c) Agent
shall have received a
fully
executed copy of each of the Rengelik Subscription Agreement, the Rengelik
Repurchase Agreement and any of the other Rengelik Option Purchase Documents,
if
any (in each case including any schedules, exhibits, annexes and other
attachments thereto), each of which shall be in form and substance reasonably
satisfactory to Agent;
(d) All
proceedings taken in connection with the transactions contemplated by this
Amendment and all documents, instruments and other legal matters incident
thereto shall be satisfactory to Agent, Lenders and their respective legal
counsel; and
(e) No
Default or Event of Default shall have occurred and be continuing, both before
and after giving effect to the provisions of this Amendment.
4. Representations
and Warranties.
To
induce Agent and the Lenders signatory hereto to enter into this Amendment,
each
Credit Party hereby represents and warrants to Agent and the Lenders that:
(a) The
execution, delivery and performance by each Credit Party of this Amendment
and
the transactions contemplated hereby is within its organizational power, have
been duly authorized by all necessary action, have received all necessary
governmental approval (if any shall be required), and do not and will not
contravene or conflict with any provision of law applicable to any Credit Party,
the articles of incorporation, by-laws or any other organizational document
of
any Credit Party, any order, judgment or decree of any court or governmental
agency, or any agreement, instrument or document binding upon any Credit Party
or any of its property;
(b) Each
of
the Credit Agreement and the other Loan Documents, as amended by this Amendment,
are the legal, valid and binding obligation of each Credit Party, enforceable
against such Credit Party in accordance with their terms, except as such
enforceability may be limited by applicable bankruptcy, reorganization,
moratorium, fraudulent transfer or other similar laws affecting creditors'
rights generally or by principles governing the availability of equitable
remedies;
(c) After
giving effect to the amendments set forth herein, the representations and
warranties contained in the Credit Agreement and the other Loan Documents are
true and accurate (in all material respects if any such representation and
warranty is not by its terms already qualified as to materiality) as of the
date
hereof with the same force and effect as if such had been made on and as of
the
date hereof (other than those which, by their terms, specifically are made
as of
a certain date prior to the date hereof);
(d) Each
Credit Party has performed in all material respects all of its obligations
under
the Credit Agreement and the Loan Documents to be performed by it on or before
the date hereof and as of the date hereof, such Credit Party is in compliance
in
all material respects with all applicable terms and provisions of the Credit
Agreement and each of the Loan Documents to be observed and performed by it
and
no Event of Default or other event which, upon notice or lapse of time or both,
would constitute an Event of Default, has occurred;
(e) The
execution and performance of the Rengelik Option Purchase Documents and
consummation of the Rengelik Option Purchase and the transactions contemplated
thereby does not and will not (i) violate, contravene or conflict with any
Contractual Obligation (including, without limitation, any provision of the
Public Note Indenture, the Intermediate Holdings Note Indenture or the
Subordinated Notes) of any Credit Party or (ii) cause or otherwise result in
any
prepayment of, redemption of, acceleration of or offer to purchase any amounts
in respect of any Indebtedness (including, without limitation, the Public Note
Debt, the Intermediate Holdings Note Debt or the Indebtedness evidenced by
the
Subordinated Notes); and
(f) Attached
hereto as Exhibit A is a true, correct and complete executed copy of each of
(i)
the Rengelik Subscription Agreement and (ii) the Rengelik Repurchase Agreement,
which such Borrower represents and warrants constitute all of the material
agreements and material documents to be executed and/or delivered in connection
with the Rengelik Option Purchase (collectively, the "Rengelik Option Purchase
Documents").
5. Reaffirmation
of Collateral Documents.
Each
Credit Party hereby (a) affirms that (i) except as expressly contained herein,
nothing contained therein shall modify in any respect whatsoever any of its
obligations under any of the Collateral Documents to which it is a party and
(ii) each such Collateral Document is and shall continue to remain in full
force
and effect and (b) agrees that all references in any of the Loan Documents
to
the "Obligations" shall be deemed to refer to the definition of "Obligations"
as
amended by this Amendment and as otherwise amended from time to
time.
6. Counterparts.
This
Amendment may be executed in any number of counterparts and by the different
parties on separate counterparts, and each such counterpart shall be deemed
to
be an original, but all such counterparts shall together constitute but one
and
the same Amendment.
7. Continued
Effectiveness.
Except
as affected hereby, the Credit Agreement and each of the Loan Documents shall
continue in full force and effect according to its terms.
8. Costs
and Expenses.
Each
Borrower hereby acknowledges
and agrees that this Amendment is a "Loan Document" for purposes of, among
other
things, subsection 1.3(e) of the Credit Agreement.
[signature
page follows]
IN
WITNESS WHEREOF, this Amendment has been executed as of the day and year first
written above.
BORROWERS:
SPORTRACK,
LLC
By:
/s/
Xxxxxx X. Xxxxxxxxx
Name:
Xxxxxx
X. Xxxxxxxxx
Title:
EVP
and CFO
|
VALLEY
INDUSTRIES, LLC
By:
/s/
Xxxxxx X. Xxxxxxxxx
Name:
Xxxxxx
X. Xxxxxxxxx
Title:
EVP
and CFO
|
BRINK
INTERNATIONAL B.V.
By:
/s/
Xxxxxx xx Xxxxx
Name:
Xxxxxx
xx Xxxxx
Title:
|
OTHER
CREDIT PARTIES:
CHAAS
HOLDINGS, LLC
By:
/s/
Xxxxxx X. Xxxxxxxxx
Name:
Xxxxxx
X. Xxxxxxxxx
Title:
EVP
and CFO
|
ADVANCED
ACCESSORY HOLDINGS CORPORATION
By:
/s/
Xxxxxx X. Xxxxxxxxx
Name:
Xxxxxx
X. Xxxxxxxxx
Title:
EVP
and CFO
|
CHAAS
ACQUISITIONS, LLC
By:
/s/
Xxxxxx X. Xxxxxxxxx
Name:
Xxxxxx
X. Xxxxxxxxx
Title:
EVP
and CFO
|
ADVANCED
ACCESSORY SYSTEMS, LLC
By:
/s/
Xxxxxx X. Xxxxxxxxx
Name:
Xxxxxx
X. Xxxxxxxxx
Title:
EVP
and CFO:
|
AAS
ACQUISITIONS, LLC
By:
/s/
Xxxxxx X. Xxxxxxxxx
Name:
Xxxxxx
X. Xxxxxxxxx
Title:
EVP
and CFO
|
CHAAS
HOLDINGS B.V.
By:
/s/
Xxxxxx xx Xxxxx
Name:
Xxxxxx
xx Xxxxx
Title:
|
SPORTRACK
ACCESSORIES INC.
By:
/s/
Xxxxxx X. Xxxxxxxxx
Name:
Xxxxxx
X. Xxxxxxxxx
Title:
EVP
and CFO
|
SPORTRACK
GMBH
By:
/s/
Xxxxxxx Xxxxx
Name:
Xxxxxxx
Xxxxx
Title:
Managing
Director
|
VALTEK,
LLC
By:
/s/
Xxxxxx X. Xxxxxxxxx
Name:
Xxxxxx
X. Xxxxxxxxx
Title:
EVP
and CFO
|
CHAAS
HOLDINGS III B.V.
By:
/s/
Xxxxxx xx Xxxxx
Name:
Xxxxxx
xx Xxxxx
Title:
|
AAS
CAPITAL CORPORATION
By:
/s/
Xxxxxx X. Xxxxxxxxx
Name:
Xxxxxx
X. Xxxxxxxxx
Title:
EVP
and CFO
|
NOMADIC
SPORT INC.
By:
/s/
Xxxxxx X. Xxxxxxxxx
Name:
Xxxxxx
X. Xxxxxxxxx
Title:
EVP
and CFO
|
SPORTRACK
S.R.O.
By:
/s/
Xxxxxxx Xxxxx
Name:
Xxxxxxx
Xxxxx
Title:
Managing
Director
|
SPORTRACK
IBERICA AUTOMOTIVE, S.L. UNIPERSONAL
By:
/s/
Xxxxxxx Xxxxx
Name:
Xxxxxxx
Xxxxx
Title:
Managing
Director
|
BRINK
SVERIGE AB
By:
/s/
Xxxxxx xx Xxxxx
Name:
Xxxxxx
xx Xxxxx
Title:
|
BRINK
U.K. LIMITED
By:
/s/
Xxxxxx xx Xxxxx
Name:
Xxxxxx
xx Xxxxx
Title:
|
BRINK
NORDISK HOLDINGS APS
By:
/s/
Xxxxxx xx Xxxxx
Name:
Xxxxxx
xx Xxxxx
Title:
|
BRINK
POLSKA SP Z.O.O.
By:
/s/
Xxxxxx xx Xxxxx
Name:
Xxxxxx
xx Xxxxx
Title:
|
BRINK
FRANCE S.A.R.L.
By:
/s/
Xxxxxx xx Xxxxx
Name:
Xxxxxx
xx Xxxxx
Title:
|
ELLEBI
S.R.L.
By:
/s/
Xxxxxx xx Xxxxx
Name:
Xxxxxx
xx Xxxxx
Title:
|
NORDISK
KOMPONENT HOLDINGS A/S
By:
/s/
Xxxxxx xx Xxxxx
Name:
Xxxxxx
xx Xxxxx
Title:
|
SOCIETE
DE FABRICATION D'EQUIPEMENTS ET D'ACCESSOIRES SA
By:
/s/
Xxxxxx xx Xxxxx
Name:
Xxxxxx
xx Xxxxx
Title:
|
BRINK
TREKHAKEN B.V.
By:
/s/
Xxxxxx xx Xxxxx
Name:
Xxxxxx
xx Xxxxx
Title:
|
BRINK
A/S
By:
/s/
Xxxxxx xx Xxxxx
Name:
Xxxxxx
xx Xxxxx
Title:
|
SCI
L'ELMONTAISE
By:
/s/
Xxxxxx xx Xxxxx
Name:
Xxxxxx
xx Xxxxx
Title:
|
CHAAS
HOLDINGS II B.V.
By:
/s/
Xxxxxx xx Xxxxx
Name:
Xxxxxx
xx Xxxxx
Title:
|
AGENT
AND LENDERS:
GENERAL
ELECTRIC CAPITAL CORPORATION,
as Agent and a Lender
By:
/s/
Xxxxx X. Xxxxx
Name:
Xxxxx
X. Xxxxx
Title:
Duly Authorized Signatory
|
PB
CAPITAL CORPORATION,
as a Lender
By:
Name:
Title:
|
COMERICA
BANK,
as a Lender
By:
Name:
Title:
|
EXHIBIT
A
The
Rengelik Option Purchase Documents
See
attached