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 (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 May 17, 2005 (the
"Subscription Agreement"), between European Borrower and Xxxxxx xx Xxxxx, 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 Xxxxxx XxXxxxx, 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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IN WITNESS WHEREOF, this Amendment has been executed as of the day and
year first written above.
BORROWERS:
SPORTRACK, LLC
By: /s/ Xxxxxx Xxxxxxxxx
-----------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Executive Vice President and
Chief Financial Officer
VALLEY INDUSTRIES, LLC
By: /s/ Xxxxxx Xxxxxxxxx
-----------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Executive Vice President and
Chief Financial Officer
BRINK INTERNATIONAL B.V.
By: /s/ G de Graaf
-----------------------------------
Name: X.xx Xxxxx
Title: Chief Executive Officer
OTHER CREDIT PARTIES:
CHAAS HOLDINGS, LLC
By: /s/ Xxxxxx Xxxxxxxxx
-----------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Executive Vice President and
Chief Financial Officer
ADVANCED ACCESSORY HOLDINGS CORPORATION
By: /s/ Xxxxxx Xxxxxxxxx
-----------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Executive Vice President and
Chief Financial Officer
CHAAS ACQUISITIONS, LLC
By: /s/ Xxxxxx Xxxxxxxxx
-----------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Executive Vice President and
Chief Financial Officer
ADVANCED ACCESSORY SYSTEMS, LLC
By: /s/ Xxxxxx Xxxxxxxxx
-----------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Executive Vice President and
Chief Financial Officer
AAS ACQUISITIONS, LLC
By: /s/ Xxxxxx Xxxxxxxxx
-----------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Executive Vice President and
Chief Financial Officer
CHAAS HOLDINGS B.V.
By: /s/ Xxxxxx Xxxxxxxxx
-----------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Executive Vice President and
Chief Financial Officer
SPORTRACK ACCESSORIES INC.
By: /s/ Xxxxxx Xxxxxxxxx
-----------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Executive Vice President and
Chief Financial Officer
SPORTRACK GMBH
By: /s/ Xxxxxxx Xxxxx
-----------------------------------
Name: Xxxxxxx Xxxxx
Title: Managing Director
VALTEK, LLC
By: /s/ Xxxxxx Xxxxxxxxx
-----------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Executive Vice President and
Chief Financial Officer
CHAAS HOLDINGS III B.V.
By: /s/ Xxxxxx Xxxxxxxxx
-----------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Executive Vice President and
Chief Financial Officer
AAS CAPITAL CORPORATION
By: /s/ Xxxxxx Xxxxxxxxx
-----------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Executive Vice President and
Chief Financial Officer
NOMADIC SPORT INC.
By: /s/ Xxxxxx Xxxxxxxxx
-----------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Executive Vice President and
Chief Financial Officer
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/ G de Graaf
-----------------------------------
Name: X. xx Xxxxx
Title: Chief Executive Officer
BRINK U.K. LIMITED
By: /s/ G de Graaf
-----------------------------------
Name: X. xx Xxxxx
Title: Chief Executive Officer
BRINK NORDISK HOLDINGS APS
By: /s/ G de Graaf
-----------------------------------
Name: X. xx Xxxxx
Title: Chief Executive Officer
BRINK POLSKA SP Z.O.O.
By: /s/ G de Graaf
-----------------------------------
Name: X. xx Xxxxx
Title: Chief Executive Officer
BRINK FRANCE S.A.R.L.
By: /s/ G de Graaf
-----------------------------------
Name: X. xx Xxxxx
Title: Chief Executive Officer
ELLEBI S.R.L.
By: /s/ G de Graaf
-----------------------------------
Name: X. xx Xxxxx
Title: Chief Executive Officer
NORDISK KOMPONENT HOLDINGS A/S
By: /s/ G de Graaf
-----------------------------------
Name: X. xx Xxxxx
Title: Chief Executive Officer
SOCIETE DE FABRICATION
D'EQUIPEMENTS ET D'ACCESSOIRES SA
By: /s/ G de Graaf
-----------------------------------
Name: X. xx Xxxxx
Title: Chief Executive Officer
BRINK TREKHAKEN B.V.
By: /s/ G de Graaf
-----------------------------------
Name: X. xx Xxxxx
Title: Chief Executive Officer
BRINK A/S
By: /s/ G de Graaf
-----------------------------------
Name: X. xx Xxxxx
Title: Chief Executive Officer
SCI L'ELMONTAISE
By: /s/ G de Graaf
-----------------------------------
Name: X. xx Xxxxx
Title: Chief Executive Officer
CHAAS HOLDINGS II B.V.
By: /s/ G de Graaf
-----------------------------------
Name: X. xx Xxxxx
Title: Chief Executive Officer
AGENT AND LENDERS:
GENERAL ELECTRIC CAPITAL
CORPORATION, as Agent and a Lender
By: /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx
Title: Duly Authorized Signatory
PB CAPITAL CORPORATION, as a Lender
By: /s/ Xxxxxxxxxxx X. Xxxxx /s/ Xxxx Morglia
-----------------------------------------------
Name: Xxxxxxxxxxx X. Xxxxx Xxxx Morglia
Title: Vice President Vice President
COMERICA BANK, as a Lender
By: /s/ Xxxxxx X. Xxxxxxxxx
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Name: Xxxxxx X. Xxxxxxxxx
Title: Vice President
