EXHIBIT 4.1
ADVANCED ACCESSORY SYSTEMS, LLC
and
AAS CAPITAL CORPORATION,
as Issuers,
and
THE GUARANTORS PARTY HERETO,
as Guarantors
-------------------
10 3/4% Senior Notes due 2011
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FIRST SUPPLEMENTAL INDENTURE
Dated as of June 26, 2006
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Supplementing the Indenture, dated as of May 23,
2003, among Advanced Accessory Systems, LLC and AAS Capital
Corporation, as Issuers,
the Guarantors party thereto and BNY Midwest Trust Company, as Trustee
-------------------
BNY MIDWEST TRUST COMPANY,
as Trustee
-------------------
FIRST SUPPLEMENTAL INDENTURE dated as of June 26, 2006 (this "SUPPLEMENTAL
INDENTURE"), to the INDENTURE, dated as of May 23, 2003 (the "INDENTURE"), among
Advanced Accessory Systems, LLC, a Delaware limited liability company ("AAS"),
and AAS Capital Corporation, a Delaware corporation ("AASC" and, together with
AAS, the "ISSUERS"), the Guarantors listed on SCHEDULE A hereto (the
"GUARANTORS"), and BNY Midwest Trust Company, an Illinois trust company, as
trustee (the "TRUSTEE"), which governs the terms of the Issuers' 10 3/4%
Senior Notes due 2011 (the "NOTES").
WHEREAS, Section 9.2 of the Indenture provides that the Issuers, the
Guarantors and the Trustee may amend the Indenture with the consent of the
Holders of at least a majority in principal amount of the Notes then outstanding
(the "REQUISITE CONSENTS");
WHEREAS, pursuant to the Offer to Purchase and Consent Solicitation
Statement, dated June 5, 2006, as modified from time to time (the "OFFER TO
PURCHASE"), the Issuers commenced a cash tender offer for any and all
outstanding Notes and solicited consents from Holders of Notes to amend certain
provisions of the Indenture, as set forth in Article I hereof;
WHEREAS, the Requisite Consents to the amendments effected by this
Supplemental Indenture have been received; and
WHEREAS, this Supplemental Indenture has been duly authorized by all
necessary corporate action on the part of the Issuers.
NOW, THEREFORE, the Issuers, the Guarantors and the Trustee agree as
follows for the equal and ratable benefit of the Holders of the Notes:
ARTICLE I
AMENDMENTS
Section 1.01. AMENDMENTS TO ARTICLE 4.
a. Upon the effectiveness of the amendments set forth in this Article
I, each of Section 4.3 (Reports), Section 4.4 (Compliance Certificate), Section
4.5 (Taxes), Section 4.6 (Stay, Extension and Usury Laws), Section 4.7
(Limitation on Restricted Payments), Section 4.8 (Limitation on Dividend and
Other Payment Restrictions Affecting Restricted Subsidiaries), Section 4.9
(Limitation on Incurrence of Additional Indebtedness), Section 4.11 (Limitations
on Transactions with Affiliates), Section 4.12 (Limitation on Liens), Section
4.14 (Insurance Matters), Section 4.15 (Offer to Repurchase Upon Change of
Control), Section 4.16 (Additional Subsidiary Guarantees), Section 4.17 (Conduct
of Business), Section 4.18 (Payments for Consent) and Section 4.19 (Limitation
on Preferred Stock of Restricted Subsidiaries) of the Indenture shall be deleted
in its entirety and replaced with the phrase "[Intentionally Omitted]." All
references to such deleted sections shall also be deleted in their entirety.
b. Upon the effectiveness of the amendments set forth in this Article,
each of clauses (A), (B), (C), (D), (F), (G), (H) and (I) of Section 4.10 shall
be deleted in its entirety and replaced with the phrase "[Intentionally
Omitted]." All references to such deleted clauses shall also be deleted in their
entirety.
c. Upon the effectiveness of the amendments set forth in this Article
I, Section 4.13 shall be deleted in its entirety and replaced with the
following:
"Subject to Article V hereof, each of the Issuers and the Guarantors
shall do or cause to be done all things necessary to preserve and keep in
full force and effect its corporate or other existence in accordance with
the organizational documents (as the same may be amended from time to time)
of the Issuers or such Guarantor."
Section 1.02. AMENDMENTS TO ARTICLE 5. Upon the effectiveness of the
amendments set forth in this Article I, Section 5.1 shall be deleted in its
entirety and replaced with the following:
"Section 5.1. SALE OF ASSETS. In the event of a sale (the "QUALIFIED SALE")
of substantially all of the assets of Holdings, in one or a series of related
transactions, to Thule Sportrack Beheer B.V. (the "SUCCESSOR GUARANTOR") or its
Affiliates, (i) the Successor Guarantor shall expressly assume, by supplemental
indenture (in form and substance reasonably satisfactory to the Trustee in all
respects), executed and delivered to the Trustee, the Obligations under the
Holdings Guarantee and the performance of every covenant of the Holdings
Guarantee to be performed or observed, (ii) the Company shall remain an Issuer
under this Indenture, (iii) any Person that acquires all or substantially all of
the assets of Valley Industries, LLC ("VALLEY") shall expressly assume, by
supplemental indenture (in form and substance reasonably satisfactory to the
Trustee in all respects), executed and delivered to the Trustee, the Obligations
of Valley as a Subsidiary Guarantor and the performance of every covenant of
such Subsidiary Guarantee to be performed or observed, and (iv) an entity
designated by the Successor Guarantor (the "SUCCESSOR ISSUER") shall expressly
assume, by supplemental indenture (in form and substance reasonably satisfactory
to the Trustee in all respects), executed and delivered to the Trustee, all of
the Obligations of AAS Capital Corporation under this Indenture, whereupon the
Successor Issuer shall be deemed an Issuer for all purposes of this Indenture
and AAS Capital Corporation shall be released from its obligations under this
Indenture. Notwithstanding the provisions of Section 11.4 of this Indenture, any
Subsidiary Guarantor that is no longer a Subsidiary of the Company, the
Successor Guarantor or the Successor Issuer upon the effectiveness of a
Qualified Sale shall be released from its Obligations as a Subsidiary Guarantor
under this Indenture. Upon the effectiveness of a Qualified Sale and subject to
compliance with the provisions contained herein,(x) Holdings will be
automatically discharged from all of its Obligations under this Indenture and
the Holdings Guarantee and (y) this Section 5.1 shall have no further force or
effect."
Section 1.03. AMENDMENTS TO ARTICLE 6.
a. Upon the effectiveness of the amendments set forth in this Article,
each of clauses (c), (d), (e) and (h) of Section 6.1 shall be deleted in its
entirety and replaced with the phrase "[Intentionally Omitted]." All references
to such deleted clauses shall also be deleted in their entirety.
b. Upon the effectiveness of the amendments set forth in this Article,
clauses (f) and (g) of Section 6.1 shall be deleted in their entirety and
replaced with the following:
"(f) the Successor Guarantor or the Company:
(i) commences a voluntary case under any Bankruptcy Law,
(ii) consents to the entry of an order for relief against it in
an involuntary case,
(iii) consents to the appointment of a custodian or receiver of
it or for all or substantially, all of its property,
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(iv) makes a general assignment for the benefit of its creditors,
or
(v) generally is not paying its debts as they become due; or
(g) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that:
(i) is for relief in an involuntary case against the Successor
Guarantor or the Company;
(ii) appoints a custodian or receiver of the Successor Guarantor
or the Company or for all or substantially all of the property of
any of the foregoing;
(iii) orders the liquidation of the Successor Guarantor or the
Company;
and the order or decree remains unstayed and in effect for 60 consecutive
days."
Section 1.04. AMENDMENTS TO ARTICLE 11. Upon the effectiveness of the
amendments set forth in this Article, the first paragraph of Section 11.4(a)
shall be deleted in its entirety and replaced with the following:
"The Guarantee of a Subsidiary Guarantor will be automatically and
unconditionally released without any action on the part of the Trustee or the
Holders of the Notes: (1) in connection with any sale or other disposition of
all or substantially all of the assets of that Subsidiary Guarantor (including,
without limitation, by way of merger or consolidation); (2) in connection with
any sale of all of the Capital Stock of that Subsidiary Guarantor; (3) if that
Subsidiary Guarantor is designated as an Unrestricted Subsidiary in accordance
with the applicable provisions of this Indenture; or (4) upon the payment in
full of the Notes."
Section 1.05. AMENDMENTS TO THE NOTES.
a. Upon the effectiveness of the amendments set forth in this Article,
Section 9 of the Notes and clauses (iii), (iv) and (v) of Section 13 of the
Notes shall be amended and restated in their entirety to read as follows:
9. "[INTENTIONALLY OMITTED];"
13. "(iii) [INTENTIONALLY OMITTED];
(iv) [INTENTIONALLY OMITTED];
(v) [INTENTIONALLY OMITTED]; and"
b. Upon the effectiveness of the amendments set forth in this Article,
clause (iv) of Section 13 of the Notes shall be amended and restated in its
entirety to read as follows:
"(vi) certain events of bankruptcy or insolvency with respect to the
Issuer."
Section 1.06. TRUSTEE'S ACCEPTANCE. The Trustee hereby accepts this
Supplemental Indenture and agrees to perform the same under the terms and
conditions set forth in the Indenture.
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ARTICLE II
MISCELLANEOUS
Section 2.01. INTERPRETATION. Upon execution and delivery of this
Supplemental Indenture and the effectiveness of the amendments set forth in
Article I, the Indenture shall be modified and amended in accordance with this
Supplemental Indenture, and all the terms and conditions of both shall be read
together as though they constitute one instrument, except that, in case of
conflict, the provisions of this Supplemental Indenture shall control. The
Indenture, as modified and amended by this Supplemental Indenture, is hereby
ratified and confirmed in all respects and shall bind every Holder of Notes. In
case of conflict between the terms and conditions contained in the Notes and
those contained in the Indenture, as modified and amended by this Supplemental
Indenture, the provisions of the Indenture, as modified and amended by this
Supplemental Indenture, shall control.
Section 2.02. CONFLICT WITH TRUST INDENTURE ACT. If any provision of this
Supplemental Indenture limits, qualifies or conflicts with any provision of the
TIA that is required under the TIA to be part of and govern any provision of
this Supplemental Indenture, the provision of the TIA shall control. If any
provision of this Supplemental Indenture modifies or excludes any provision of
the TIA that may be so modified or excluded, the provision of the TIA shall be
deemed to apply to the Indenture as so modified or to be excluded by this
Supplemental Indenture, as the case may be.
Section 2.03. SEVERABILITY. In case any provision in this Supplemental
Indenture shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
Section 2.04. TERMS DEFINED IN THE INDENTURE. All capitalized terms not
otherwise defined herein shall have the meanings ascribed to them in the
Indenture.
Section 2.05. HEADINGS. The Article and Section headings of this
Supplemental Indenture have been inserted for convenience of reference only, are
not to be considered a part of this Supplemental Indenture and shall in no way
modify or restrict any of the terms or provisions hereof.
Section 2.06. BENEFITS OF SUPPLEMENTAL INDENTURE, ETC. Nothing in this
Supplemental Indenture or the Notes, express or implied, shall give to any
Person, other than the parties hereto and thereto and their successors hereunder
and thereunder and the Holders of the Notes, any benefit of any legal or
equitable right, remedy or claim under the Indenture, this Supplemental
Indenture or the Notes.
Section 2.07. SUCCESSORS. All agreements of the Issuers and the Guarantors
in this Supplemental Indenture shall bind their successors. All agreements of
the Trustee in this Supplemental Indenture shall bind its successors.
Section 2.08. TRUSTEE NOT RESPONSIBLE FOR RECITALS. The recitals contained
herein shall be taken as the statements of the Issuers and the Trustee assumes
no responsibility for their correctness. The Trustee makes no representations as
to the validity or sufficiency of this Supplemental Indenture.
Section 2.09. CERTAIN DUTIES AND RESPONSIBILITIES OF THE TRUSTEE. In
entering into this Supplemental Indenture, the Trustee shall be entitled to the
benefit of every provision of the Indenture relating to the conduct or affecting
the liability or affording protection to the Trustee, whether or not elsewhere
herein so provided.
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Section 2.10. GOVERNING LAW. THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK BUT
WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT
THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED
THEREBY.
Section 2.11. COUNTERPARTS. The parties may sign any number of copies of
this Supplemental Indenture. Each signed copy shall be an original, but all of
them together represent the same agreement.
Section 2.12. EFFECTIVENESS OF AMENDMENTS. The amendments to the Indenture
set forth in Article I shall become effective immediately upon the acceptance
for payment by the Issuers pursuant to the Offer to Purchase of at least a
majority in principal amount of the Notes then outstanding (determined in
accordance with the provisions of Sections 2.8 and 2.9 of the Indenture) on the
date hereof.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, each party hereto has caused this Supplemental
Indenture to be signed by its officer thereunto duly authorized as of the date
first written above.
ADVANCED ACCESSORY SYSTEMS, LLC
By: /s/ Ronald J. Gardhouse
------------------------------------
Name: Ronald J. Gardhouse
Title: Executive Vice President, Chief
Financial Officer, Controller,
Secretary and Treasurer
AAS CAPITAL CORPORATION
By: /s/ Ronald J. Gardhouse
------------------------------------
Name: Ronald J. Gardhouse
Title: Executive Vice President, Chief
Financial Officer, Secretary and
Treasurer
BNY MIDWEST TRUST COMPANY, as Trustee,
By: /s/ Roxane Ellwanger
------------------------------------
Name: Roxane Ellwanger
Title: Assistant Vice President
[SIGNATURES CONTINUE ON THE FOLLOWING PAGE]
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THE GUARANTORS
CHAAS ACQUISITIONS, LLC
By: /s/ Ronald J. Gardhouse
--------------------------
Name: Ronald J. Gardhouse
Title: Executive Vice President,
Chief Financial Officer and
Controller
AAS ACQUISITIONS, LLC
By: /s/ Ronald J. Gardhouse
--------------------------
Name: Ronald J. Gardhouse
Title: Executive Vice President and
Chief Financial Officer
VALLEY INDUSTRIES, LLC
By: /s/ Ronald J. Gardhouse
--------------------------
Name: Ronald J. Gardhouse
Title: Executive Vice President,
Chief Financial Officer,
Secretary and Treasurer
VALTEK LLC
By: /s/ Ronald J. Gardhouse
--------------------------
Name: Ronald J. Gardhouse
Title: Executive Vice President,
Chief Financial Officer,
Secretary and Treasurer
SPORTRACK, LLC
By: /s/ Ronald J. Gardhouse
--------------------------
Name: Ronald J. Gardhouse
Title: Executive Vice President,
Chief Financial Officer,
Secretary and Treasurer
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SCHEDULE A
CHAAS Acquisitions, LLC
AAS Acquisitions, LLC
Valley Industries, LLC
Valtek LLC
Sportrack, LLC