AMENDMENT NO. 1 TO PURCHASE AGREEMENT
AMENDMENT
NO. 1 TO
This
AMENDMENT NO. 1 TO PURCHASE AGREEMENT (this “Amendment
No. 1”)
is
entered into as
of July 13,
2006
by and among THULE AB, a company organized under the laws of the Kingdom of
Sweden (“Purchaser”),
ADVANCED ACCESSORY HOLDINGS CORPORATION, a Delaware corporation (“AAHC”),
AAS ACQUISITIONS, LLC, a Delaware limited liability company, CHAAS ACQUISITIONS,
LLC, a Delaware limited liability company, and VALLEY INDUSTRIES, LLC, a
Delaware limited liability company (collectively, “Sellers”
and, together with AAHC and Purchaser, the “Parties”).
W
I T N E S S E T H:
WHEREAS,
the Parties entered into the Purchase Agreement, dated as of May 17, 2006 (the
“Purchase
Agreement”),
pursuant to which Purchaser agreed to purchase from Sellers, and Sellers agreed
to sell to Purchaser, upon the satisfaction of certain conditions, the Acquired
Business; and
WHEREAS,
the Parties desire to amend the Purchase Agreement, as hereinafter more
particularly set forth;
NOW,
THEREFORE, in consideration of the foregoing premises and mutual covenants
herein contained, the parties hereto do hereby agree as follows:
ARTICLE
I
DEFINITIONS
Section
1.01. Capitalized
Terms.
Capitalized terms used and not defined herein have the meanings assigned to
them
in the Purchase Agreement.
ARTICLE
II
AMENDMENTS
Section
2.01. Definitions.
a. Section
1.1 of the Purchase Agreement shall be amended by inserting the definition
of
“Additional OpCo Tender Consideration” in alphabetical order as
follows:
““Additional
OpCo Tender Consideration”
means an amount equal to one-half of the product of (x) the aggregate principal
amount of the OpCo Notes tendered before the Consent Payment Deadline (as
defined in the OpCo Tender documents) and (y) 1.75%”.
b. Section
1.1 of the Purchase Agreement shall be amended by deleting the definition of
“Cash Consideration” in its entirety and replacing it as follows:
““Cash
Consideration”
means the Base Price minus the sum of (i) the Aggregate OpCo Note Tender Price,
(ii) 101% of the aggregate outstanding principal balance of the OpCo Notes
(after giving effect to the OpCo Tender), (iii) the Additional OpCo Tender
Consideration and (iv) the aggregate outstanding balance (principal and
interest) of (x) all other outstanding Indebtedness of the Sold Subsidiaries
as
of the Closing and (y) all other outstanding Indebtedness included in the
Assumed Liabilities, subject to adjustment as provided in Section
2.10.”.
c. Section
1.1 of the Purchase Agreement shall be amended by deleting the definition of
“Closing Cash Payment” in its entirety and replacing it as follows:
““Closing
Cash Payment”
means (a) the sum of (i) the Base Price plus (ii) if a positive number, the
Estimated Working Capital Differential, minus (b) the sum of (i) the Aggregate
OpCo Note Tender Price, (ii) the Additional OpCo Tender Consideration, (iii)
the
Estimated Closing Indebtedness, (iv) if a negative number, the absolute value
of
the Estimated Working Capital Differential, and (v) the Disclosed Pre-Closing
Product Related Credit.”.
Section
2.02. OpCo
Tender.
Section 5.4(b) of the Purchase Agreement shall be hereby amended by deleting
it
in its entirety and replacing it as follows:
Sellers
shall cause AAHC to commence, and thereafter to use commercially reasonable
efforts to complete, (i) a combined tender offer and consent solicitation in
respect of the HoldCo Notes (the “HoldCo
Tender”)
and (ii) a combined tender offer and consent solicitation in respect of the
OpCo
Notes (as may be amended from time to time, the “OpCo
Tender”).
In the HoldCo Tender and the OpCo Tender, the respective offerors will offer
to
purchase all of the outstanding Notes to which the tender offer relates on
terms
that require tendering noteholders to furnish written consents to amendments
to
the HoldCo Indenture (for notes tendered pursuant to the HoldCo Tender) (the
“HoldCo
Indenture Amendments”)
and the OpCo Indenture (for notes tendered pursuant to the OpCo Tender) (the
“OpCo
Indenture Amendments”).
The terms of the HoldCo Indenture Amendments and the OpCo Indenture Amendments
shall be substantially as set forth on Schedule 5.4 to this Agreement with
such
changes as may reasonably be requested by the trustee under the HoldCo Indenture
and the trustee under the OpCo Indenture and reasonably acceptable to Purchaser
and Sellers. The other terms of the HoldCo Tender and the OpCo Tender shall
be
reasonably acceptable to Purchaser and shall include any terms reasonably
requested by Purchaser; provided,
that under no circumstances shall the price offered in the HoldCo Tender or
the
OpCo Tender (including consent solicitation fees) exceed 101% of accreted value
of the notes (in the case of the HoldCo Tender) or 102.75% of principal amount
of the notes (in the case of the OpCo Tender). The HoldCo Tender and the OpCo
Tender shall be commenced promptly (and in any event within five Business Days)
after Purchaser notifies Sellers that Purchaser expects that the condition
described in Section 6.1(a) of this Agreement (regarding governmental
clearances) will be obtained within the following 35 days. The conditions to
the
obligations of the offerors to accept and pay for notes tendered in response
to
the HoldCo Tender and the OpCo Tender will include (i) a condition that
sufficient consents shall have been received and not rescinded for the HoldCo
Indenture Amendments and the OpCo Indenture Amendments to become effective
when
the tendered notes are accepted for payment and (ii) a condition that upon
acceptance of the tendered notes for payment, all of the conditions to
Purchaser’s obligations under this Agreement (other than the conditions that by
their terms cannot be satisfied until the Closing) shall have been satisfied
or
waived. The parties shall cooperate with each other in respect of the HoldCo
Tender and the OpCo Tender, and in taking all actions reasonably required to
cause the HoldCo Indenture Amendments and the OpCo Indenture Amendments to
become effective, including providing any historical and pro forma financial
information relating to the Acquired Business that the Sellers or Purchaser
shall reasonably deem necessary or advisable for inclusion in the HoldCo Tender
and the OpCo Tender documents and by obtaining confirmation from the HoldCo
Indenture Trustee and the OpCo Indenture Trustee that the Trustee will execute
and deliver counterparts of the Indenture supplements and other instruments
giving effect to the HoldCo Indenture Amendments and the OpCo Indenture
Amendments when the requisite amount of noteholder consents is obtained pursuant
to the terms of the HoldCo Tender or the OpCo Tender, as applicable, and by
causing the delivery to the Trustee of such certificates, legal opinions and
other materials as the Trustee may require in accordance with the terms of
the
applicable Indentures. Sellers (on the one hand) and Purchaser (on the other)
each shall bear 50% of the costs and expenses (other than the fees and other
charges of their respective legal counsel and the amounts paid for the tendered
HoldCo Notes and, other than as provided in this Agreement, OpCo Notes) incurred
in connection with the HoldCo Tender and the OpCo Tender, including the fees
payable by AAHC, AAS and AAS Capital Corporation to Xxxxxxxxx & Company,
Inc. in its capacity as dealer manager of the Holdco Tender and the OpCo Tender,
and each promptly shall reimburse the other for such party’s share of those
costs and expenses, but in no event later than the Closing.”
ARTICLE
III
MISCELLANEOUS
Section
3.01. Headings.
The headings used in this Amendment No. 1 are for convenience only and are
not
to be considered in construing this Amendment No. 1.
Section
3.02. Remainder
of Agreement.
Except as expressly amended hereby, the Purchase Agreement is in all respects
ratified and confirmed by all of the parties hereto and the terms thereof shall
remain in full force and effect, except as expressly provided herein, and no
waiver or modification of the terms or conditions thereof is intended or to
be
inferred; provided,
that Purchaser hereby acknowledges that the terms of the HoldCo Tender and
the
OpCo Tender, dated June 5, 2006, as amended from time to time, are acceptable
to
Purchaser and included all terms reasonably requested by Purchaser.
Section
3.03. Counterparts.
This Amendment No. 1 may be executed by manual or facsimile signature in
counterparts, each of which shall be deemed to be an original but all of which
when taken together shall constitute one and the same instrument.
Section
3.04. Governing
Law.
THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE
STATE OF NEW YORK, WITHOUT GIVING EFFECT TO THE PRINCIPLES OF CONFLICTS OF
LAW.
Section
3.05. Agreement
Binding upon Successors and Assigns.
Except as otherwise specifically provided, this Amendment No. 1 shall inure
to
the benefit of and shall be binding upon the successors and assigns of the
respective Parties hereto.
[Remainder
of page intentionally left blank]
NYA
789698.2
IN
WITNESS WHEREOF, each of the Parties has caused its corporate name to be
hereunto subscribed by its officer thereunto duly authorized all as of the
day
and year first above written.
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ADVANCED
ACCESSORY HOLDINGS CORPORATION
By: /s/
Xxxxxx X. Xxxxxxxxx
Name: Xxxxxx
X. Xxxxxxxxx
Title: Executive
Vice President and Chief Financial Officer
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AAS
ACQUISITIONS, LLC
By: /s/
Xxxxxx X. Xxxxxxxxx
Name: Xxxxxx
X. Xxxxxxxxx
Title: Executive
Vice President and Chief Financial Officer
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CHAAS
ACQUISITIONS, LLC
By: /s/
Xxxxxx X. Xxxxxxxxx
Name: Xxxxxx
X. Xxxxxxxxx
Title: Executive
Vice President and Chief Financial Officer
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VALLEY
INDUSTRIES, LLC
By: /s/
Xxxxxx X. Xxxxxxxxx
Name: Xxxxxx
X. Xxxxxxxxx
Title: Executive
Vice President and Chief Financial Officer
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THULE
AB
By: /s/
Xxxx Xxxxx
Name: Xxxx
Xxxxx
Title: Director
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By: /s/
Xxxx-Xxxxx Xxxxx
Name: Xxxx-Xxxxx
Xxxxx
Title: Director
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