Exhibit 10.3
CONSENT AND FIFTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
This Consent and Fifth Amendment to Amended and Restated Credit
Agreement ("Amendment") is dated as of May 17, 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 (▇▇▇▇▇ 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 May 17, 2005 (the
"Subscription Agreement"), between European Borrower and ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇, an
individual, as optionholder ("Optionholder"), pursuant to which Optionholder
will acquire options (the "Options") to acquire an amount not in excess of 7,254
ordinary shares of European Borrower (the "Option Purchase");
WHEREAS, Borrowers desire to have European Borrower enter into the
Option Repurchase Agreement dated as of May 17, 2005 (the "Repurchase
Agreement") between European Borrower and Optionholder, pursuant to which the
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 Option Purchase would violate the Credit Agreement, and
accordingly Borrowers have requested that Agent and the Requisite Lenders
consent to the issuance of the Options and Option Purchase;
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 Options and the Option Purchase in accordance with the
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 deleting the word "or" and adding a comma
at the end of clause (i) thereof and adding a new clause (j) immediately
following clause (i) thereto as follows:,
"or (j) 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 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, 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;
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(c) Agent shall have received a fully executed copy of each of the
Subscription Agreement, the Repurchase Agreement and any of the other 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
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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 Option Purchase Documents and
consummation of the 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);
(f) Attached hereto as Exhibit A is a true, correct and complete
executed copy of each of (i) the Subscription Agreement and (ii) the 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 Option Purchase (collectively, the "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]
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Exhibit 10.3
IN WITNESS WHEREOF, this Amendment has been executed as of the day and
year first written above.
BORROWERS:
SPORTRACK, LLC
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Executive Vice President and
Chief Financial Officer
VALLEY INDUSTRIES, LLC
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Executive Vice President and
Chief Financial Officer
BRINK INTERNATIONAL B.V.
By: /s/ G de Graaf
-----------------------------------
Name: ▇.▇▇. Graaf
Title: Chief Executive Officer
OTHER CREDIT PARTIES:
CHAAS HOLDINGS, LLC
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Executive Vice President and
Chief Financial Officer
ADVANCED ACCESSORY HOLDINGS CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Executive Vice President and
Chief Financial Officer
CHAAS ACQUISITIONS, LLC
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Executive Vice President and
Chief Financial Officer
ADVANCED ACCESSORY SYSTEMS, LLC
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Executive Vice President and
Chief Financial Officer
AAS ACQUISITIONS, LLC
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Executive Vice President and
Chief Financial Officer
CHAAS HOLDINGS B.V.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Executive Vice President and
Chief Financial Officer
SPORTRACK ACCESSORIES INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Executive Vice President and
Chief Financial Officer
SPORTRACK GMBH
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Managing Director
VALTEK, LLC
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Executive Vice President and
Chief Financial Officer
CHAAS HOLDINGS III B.V.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Executive Vice President and
Chief Financial Officer
AAS CAPITAL CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Executive Vice President and
Chief Financial Officer
NOMADIC SPORT INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Executive Vice President and
Chief Financial Officer
SPORTRACK S.R.O.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Managing Director
SPORTRACK IBERICA AUTOMOTIVE, S.L.
UNIPERSONAL
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Managing Director
BRINK SVERIGE AB
By: /s/ G de Graaf
-----------------------------------
Name: ▇.▇▇. Graaf
Title: Chief Executive Officer
BRINK U.K. LIMITED
By: /s/ G de Graaf
-----------------------------------
Name: ▇.▇▇. Graaf
Title: Chief Executive Officer
BRINK NORDISK HOLDINGS APS
By: /s/ G de Graaf
-----------------------------------
Name: ▇.▇▇. Graaf
Title: Chief Executive Officer
BRINK POLSKA SP Z.O.O.
By: /s/ G de Graaf
-----------------------------------
Name: ▇.▇▇. Graaf
Title: Chief Executive Officer
BRINK FRANCE S.A.R.L.
By: /s/ G de Graaf
-----------------------------------
Name: ▇.▇▇. Graaf
Title: Chief Executive Officer
ELLEBI S.R.L.
By: /s/ G de Graaf
-----------------------------------
Name: ▇.▇▇. Graaf
Title: Chief Executive Officer
NORDISK KOMPONENT HOLDINGS A/S
By: /s/ G de Graaf
-----------------------------------
Name: ▇.▇▇. Graaf
Title: Chief Executive Officer
SOCIETE DE FABRICATION
D'EQUIPEMENTS ET D'ACCESSOIRES SA
By: /s/ G de Graaf
-----------------------------------
Name: ▇.▇▇. Graaf
Title: Chief Executive Officer
BRINK TREKHAKEN B.V.
By: /s/ G de Graaf
-----------------------------------
Name: ▇.▇▇. Graaf
Title: Chief Executive Officer
BRINK A/S
By: /s/ G de Graaf
-----------------------------------
Name: ▇.▇▇. Graaf
Title: Chief Executive Officer
SCI L'ELMONTAISE
By: /s/ G de Graaf
-----------------------------------
Name: ▇.▇▇. Graaf
Title: Chief Executive Officer
CHAAS HOLDINGS II B.V.
By: /s/ G de Graaf
-----------------------------------
Name: ▇.▇▇. Graaf
Title: Chief Executive Officer
AGENT AND LENDERS:
GENERAL ELECTRIC CAPITAL
CORPORATION, as Agent and a Lender
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Duly Authorized Signatory
PB CAPITAL CORPORATION, as a Lender
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ /s/ ▇▇▇▇ Morglia
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Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇ Morglia
Title: Vice President Vice President
COMERICA BANK, as a Lender
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
