SEVENTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
AMENDED
AND RESTATED CREDIT AGREEMENT
This
Seventh Amendment to Amended and Restated Credit Agreement ("Amendment") is
dated as of March 29, 2006, 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 that certain Amended and Restated Credit Agreement dated as of
May
23, 2003 by and among General Electric Capital Corporation, a Delaware
corporation, individually as a Lender and as Agent for the Lenders, the other
Lenders party thereto, Borrowers and the other Credit Parties signatory from
time to time 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 meaning ascribed to such terms in the Credit Agreement),
Agent and Lenders agreed, subject to the terms and provisions thereof, to
provide certain loans and other financial accommodations to Borrowers;
and
WHEREAS,
Borrowers have requested that Agent and 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. Amendments
to Credit Agreement.
Subject
to the satisfaction of the conditions precedent set forth in Section 2 of this
Amendment, and in reliance on the representations and warranties set forth
in
Section 5 of this Amendment, the Credit Agreement is hereby amended as
follows:
(a) Section
4.4 of the Credit Agreement is hereby amended and restated in its entirety
as
follows:
"(a) Holdings,
Borrowers and their Subsidiaries on a consolidated basis shall have, as of
the
last day of each Fiscal Quarter set forth below (commencing with the Fiscal
Quarter ending on March 31, 2007), from the date hereof until the Termination
Date, a Fixed Charge Coverage Ratio of not less than the following:
1.15
to
1.00 for each Fiscal Quarter from the Fiscal Quarter ending March 31, 2007
through and including the Fiscal Quarter ending December 31, 2007;
and
1.15
to
1.00 for each Fiscal Quarter ending thereafter.
(b) European
Borrower and its Subsidiaries on a consolidated basis shall have, as of the
last
day of each Fiscal Quarter set forth below, a Fixed Charge Coverage Ratio (which
ratio shall be calculated (x) in Euros and (y) solely with respect to European
Borrower and its Subsidiaries notwithstanding references to Holdings and its
Subsidiaries in Exhibit 4.8(n)) of not less than the following:
1.25
to
1.00 for the Fiscal Quarter ending December 31, 2005;
1.15
to
1.00 for the Fiscal Quarter ending March 31, 2006;
1.15
to
1.00 for the Fiscal Quarter ending June 30, 2006;
1.15
to
1.00 for the Fiscal Quarter ending September 30, 2006; and
1.15
to
1.00 for the Fiscal Quarter ending December 31, 2006."
(b) Section
4.7 of the Credit Agreement is hereby amended and restated in its entirety
as
follows:
"Holdings,
Borrowers and their Subsidiaries on a consolidated basis shall have, as of
the
last day of each Fiscal Quarter set forth below, from the date hereof until
the
Termination Date, a Senior Secured Leverage Ratio for the 12-month period then
ended of not more than the following:
2.00
to
1.00 for the Fiscal Quarter ending March 31, 2006;
2.00
to
1.00 for the Fiscal Quarter ending June 30, 2006;
1.75
to
1.00 for the Fiscal Quarter ending September 30, 2006;
1.50
to
1.00 for the Fiscal Quarter ending December 31, 2006; and
1.25
to
1.00 for each Fiscal Quarter ending thereafter."
(c) Section
6.5(b) of the Credit Agreement is hereby amended and restated in its entirety
as
follows:
"(b) Subject
to clause (a) above, in the absence of a specific determination by Agent with
respect thereto, the proceeds of any sale of, or other realization upon, all
or
any part of the Collateral granted by a US Credit Party (or with respect to
Stock pledged pursuant to a Pledge Agreement, all or any part of such Stock
which is issued by a US Credit Party or, after application as provided in clause
(c) below, which is issued by a Non-US Credit Party to the extent such Pledge
Agreement secures the US Loans) shall be (to the extent permitted by mandatory
provisions of applicable law) applied to Obligations then due (whether such
Obligations are then due by acceleration or otherwise): first,
to all
Fees, costs and expenses incurred by or owing to Agent and any Lender with
respect to this Agreement, the other Loan Documents or the Collateral;
second,
to
accrued and unpaid interest on the Obligations pertaining to the US Loans
(including any interest which but for the provisions of the Bankruptcy Code,
would have accrued on such amounts); third,
on a
pro rata basis, to the principal amount of the Obligations outstanding
pertaining to the US Loans and the then outstanding Obligations arising under
any Bank Products or in respect of any agreement with a Lender party to this
Agreement as of the Seventh Amendment Effective Date to fix or hedge foreign
currency risk (but not in excess of $2,350,000 in the aggregate with respect
to
such obligations arising under Bank Products or in respect of agreements with
Lenders party to this Agreement as of the Seventh Amendment Effective Date
to
fix or hedge foreign currency risk); fourth,
to
accrued and unpaid interest on the Obligations pertaining to the European Loans
(including any interest which but for the provisions of the Bankruptcy Code,
would have accrued on such amounts); fifth,
to the
principal amount of the Obligations outstanding pertaining to the European
Loans; sixth,
to any
other Obligations of US Borrowers owing to Agent or any US Lender under any
Loan
Document; and seventh,
to any
other Obligations of European Borrower owing to Agent or any European Lender
under any Loan Document; and"
(d) Section
8.2(h)(i) of the Credit Agreement is hereby amended and restated in its entirety
as follows:
"(i) Release
of Collateral.
Lenders
hereby irrevocably authorize Agent, at its option and in its discretion, to
release any Lien granted to or held by Agent upon any Collateral (x) upon
termination of the Commitments and payment and satisfaction of all Obligations
(other than (1) contingent indemnification obligations to the extent no
claims giving rise thereto have been asserted and (2) any Obligations then
outstanding under any Bank Products or in respect of any agreement fixing or
hedging foreign currency risk where the Lender that has provided such Bank
Products or is a counter-party to such agreement fixing or hedging foreign
currency risk, as applicable, has agreed that the same can remain outstanding
notwithstanding the termination of the Commitments and the payment and
satisfaction of the other outstanding Obligations) or (y) constituting
property being sold or disposed of if Borrowers (or any of them) certify to
Agent that the sale or disposition is made in compliance with the provisions
of
this Agreement (and Agent may rely in good faith conclusively on any such
certificate, without further inquiry)."
(e) The
definition of "Obligations" set forth in Annex A to the Credit Agreement is
hereby amended and restated in its entirety as follows:
"'Obligations'
means
all loans, advances, debts, liabilities and obligations of any Credit Party
to
Agent or any Lender, for the performance of covenants, tasks or duties or for
payment of monetary amounts (whether or not such performance is then required
or
contingent, or such amounts are liquidated or determinable) by any Credit Party
in favor of Agent or any Lender, and all covenants and duties of any Credit
Party regarding such amounts, of any kind or nature, present or future, whether
or not evidenced by any note, agreement or other instrument, in each case
arising under the Agreement or any of the other Loan Documents, and such other
obligations of any Credit Party in favor of any Lender party to this Agreement
as of the Seventh Amendment Effective Date arising under any Bank Products
or in
respect of any agreement to fix or hedge foreign currency risk of up to an
aggregate maximum amount of $2,350,000. This term includes all principal,
interest (including all interest that accrues after the commencement of any
case
or proceeding by or against any Credit Party in bankruptcy, whether or not
allowed in such case or proceeding), Fees, Charges, expenses, attorneys' fees
and any other sum chargeable to any Credit Party under the Agreement or any
of
the other Loan Documents."
(f) The
following definitions are hereby added to Annex A to the Credit Agreement in
their appropriate alphabetical order, as follows"
"'Bank
Products'
means
any one or more of the following types of services or facilities extended to
the
Credit Parties by any Lender that is party to this Agreement as of the Seventh
Amendment Effective Date: (i) credit cards, (ii) credit card
processing services, (iii) debit cards, (iv) purchase cards,
(v) Automated Clearing House (ACH) transactions, (vi) cash management,
including controlled disbursement services, and (vii) establishing and
maintaining deposit accounts.
'Seventh
Amendment Effective Date'
means
March 29, 2006."
2. Conditions
Precedent.
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
Lenders;
(b) 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
(c) No
Default or Event of Default shall have occurred and be continuing, both before
and after giving effect to the provisions of this Amendment.
3. Fees.
Borrowers agree to jointly and severally pay to Agent for the ratable
distribution to Lenders signatory hereto a nonrefundable amendment fee equal
to
.25% of the outstanding Commitments ($152,750), such fee being due and payable
in full on the date hereof.
4. References;
Effectiveness.
Agent,
Lenders and Credit Parties hereby agree that all references to the Credit
Agreement which are contained in any of the other Loan Documents shall refer
to
the Credit Agreement as amended by this Amendment.
5. Representations
and Warranties.
To
induce Agent and Lenders to enter into this Amendment, each Credit Party hereby
represents and warrants to Agent and Lenders that:
(a) The
execution, delivery and performance by such 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 such Credit
Party, the articles of incorporation, by-laws or any other organizational
document of such Credit Party, any order, judgment or decree of any court or
governmental agency, or any agreement, instrument or document binding upon
such
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 such 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) Such
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; and
(e) In
addition to and without limitation of the foregoing representations and
warranties set forth in this Section 5, the amendments to the Credit Agreement
provided for herein do not violate any of the provisions of the Public Note
Indenture or the Intermediate Holdings Note Indenture.
6. 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.
7. 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.
8. Continued
Effectiveness.
Except
as amended hereby, the Credit Agreement and each of the Loan Documents shall
continue in full force and effect according to its terms.
9. Costs
and Expenses.
Each
Credit Party 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.
[signatures
follow]
--
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 & Chief Financial Officer
|
|
VALLEY
INDUSTRIES, LLC
By:
/s/ Xxxxxx X. Xxxxxxxxx
Name:
Xxxxxx X. Xxxxxxxxx
Title:
EVP & Chief Financial Officer
|
|
BRINK
INTERNATIONAL B.V.
By:
/s/ X. X. Xxxxxxxxx
Name:
X. X. Xxxxxxxxx
Title:
Chief Financial Officer
|
--
OTHER
CREDIT PARTIES:
|
CHAAS
HOLDINGS, LLC
By:
/s/ Xxxxxx X. Xxxxxxxxx
Name:
Xxxxxx X. Xxxxxxxxx
Title:
EVP & Chief Financial Officer
|
|
ADVANCED
ACCESSORY HOLDINGS CORPORATION
By:
/s/ Xxxxxx X. Xxxxxxxxx
Name:
Xxxxxx X. Xxxxxxxxx
Title:
EVP & Chief Financial Officer
|
|
CHAAS
ACQUISITIONS, LLC
By:
/s/ Xxxxxx X. Xxxxxxxxx
Name:
Xxxxxx X. Xxxxxxxxx
Title:
EVP & Chief Financial Officer
|
|
ADVANCED
ACCESSORY SYSTEMS, LLC
By:
/s/ Xxxxxx X. Xxxxxxxxx
Name:
Xxxxxx X. Xxxxxxxxx
Title:
EVP & Chief Financial Officer
|
|
AAS
ACQUISITIONS, LLC
By:
/s/ Xxxxxx X. Xxxxxxxxx
Name:
Xxxxxx X. Xxxxxxxxx
Title:
EVP & Chief Financial Officer
|
|
CHAAS
HOLDINGS B.V.
By:
/s/ Xxxxxx X. Xxxxxxxxx
Name:
Xxxxxx X. Xxxxxxxxx
Title:
EVP & Chief Financial Officer
|
--
|
SPORTRACK
ACCESSORIES INC.
By:
/s/ Xxxxxx X. Xxxxxxxxx
Name:
Xxxxxx X. Xxxxxxxxx
Title:
EVP & Chief Financial Officer
|
|
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 & Chief Financial Officer
|
|
CHAAS
HOLDINGS III B.V.
By:
/s/ Xxxxxx X. Xxxxxxxxx
Name:
Xxxxxx X. Xxxxxxxxx
Title:
EVP & Chief Financial Officer
|
|
AAS
CAPITAL CORPORATION
By:
/s/ Xxxxxx X. Xxxxxxxxx
Name:
Xxxxxx X. Xxxxxxxxx
Title:
EVP & Chief Financial Officer
|
|
NOMADIC
SPORT INC.
By:
/s/ Xxxxxx X. Xxxxxxxxx
Name:
Xxxxxx X. Xxxxxxxxx
Title:
EVP & 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/ X. X. Xxxxxxxxx
Name:
X. X. Xxxxxxxxx
Title:
Chief Financial Officer
|
|
BRINK
U.K. LIMITED
By:
/s/ X. X. Xxxxxxxxx
Name:
X. X. Xxxxxxxxx
Title:
Chief Financial Officer
|
|
BRINK
NORDISK HOLDINGS APS
By:
/s/ X. X. Xxxxxxxxx
Name:
X. X. Xxxxxxxxx
Title:
Chief Financial Officer
|
|
BRINK
POLSKA SP Z.O.O.
By:
/s/ X. X. Xxxxxxxxx
Name:
X. X. Xxxxxxxxx
Title:
Chief Financial Officer
|
|
BRINK
FRANCE S.A.R.L.
By:
/s/ X. X. Xxxxxxxxx
Name:
X. X. Xxxxxxxxx
Title:
Chief Financial Officer
|
|
ELLEBI
S.R.L.
By:
/s/ X. X. Xxxxxxxxx
Name:
X. X. Xxxxxxxxx
Title:
Chief Financial Officer
|
--
|
NORDISK
KOMPONENT HOLDINGS A/S
By:
/s/ X. X. Xxxxxxxxx
Name:
X. X. Xxxxxxxxx
Title:
Chief Financial Officer
|
|
SOCIETE
DE FABRICATION D'EQUIPEMENTS ET D'ACCESSOIRES SA
By:
/s/ X. X. Xxxxxxxxx
Name:
X. X. Xxxxxxxxx
Title:
Chief Financial Officer
|
|
BRINK
A/S
By:
/s/ X. X. Xxxxxxxxx
Name:
X. X. Xxxxxxxxx
Title:
Chief Financial Officer
|
|
SCI
L'ELMONTAISE
By:
/s/ X. X. Xxxxxxxxx
Name:
X. X. Xxxxxxxxx
Title:
Chief Financial Officer
|
|
CHAAS
HOLDINGS II B.V.
By:
/s/ X. X. Xxxxxxxxx
Name:
X. X. Xxxxxxxxx
Title:
Chief Financial Officer
|
--
AGENT
AND LENDERS:
|
GENERAL
ELECTRIC CAPITAL CORPORATION,
as Agent and a Lender
By:
/s/ Xxxxxx X. Xxxxxxxxx
Name:
Xxxxxx X. Xxxxxxxxx
Title:
Duly Authorized Signatory
|
|
PB
CAPITAL CORPORATION,
as a Lender
By:
/s/ Xxxxxxx X. Xxxxx
Name:
Xxxxxxx X. Xxxxx
Title:
Managing Director
|
|
COMERICA
BANK,
as a Lender
By:
/s/ Xxxxxx X. XxXxxxxxx
Name:
Xxxxxx X. XxXxxxxxx
Title:
Vice President
|
