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EXHIBIT 10.7(e)
AMENDMENT NO. 5 AND WAIVER
Dated as of December 31, 1998
to
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of August 5, 1997
THIS AMENDMENT NO. 5 ("Amendment") is made as of December 31,
1998 by and among Advanced Accessory Systems, LLC (formerly known as AAS
Holdings, LLC), SportRack, LLC (formerly known as Advanced Accessory Systems,
LLC), Valley Industries, LLC, Brink International BV and Brink BV (the
"Borrowers"), the financial institutions listed on the signature pages hereof
(the "Lenders") and NBD Bank, as Administrative Agent and Documentation and
Collateral Agent, and The Chase Manhattan Bank, as Co-Administrative Agent and
Syndication Agent (the "Agents"), under that certain Second Amended and Restated
Credit Agreement dated as of August 5, 1997 by and among the Borrowers, the
Lenders and the Agents (as amended, the "Credit Agreement"). Defined terms used
herein and not otherwise defined herein shall have the respective meanings given
to them in the Credit Agreement.
WHEREAS, the Borrowers, the Lenders and the Agents have agreed
to amend the Credit Agreement on the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the premises set forth
above, the terms and conditions contained herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
Borrowers, the Lenders and the Agents have agreed to the following amendments to
the Credit Agreement.
1. Amendments to Credit Agreement. Effective as of December
31, 1998 and subject to the satisfaction of the conditions precedent set forth
in Section 3 below, the Credit Agreement is hereby amended as follows:
1.1. Section 1.1 of the Credit Agreement is hereby amended to
insert in the definition of "Agreed Currencies" the following immediately after
the reference to "Dutch Guilders" the following:
"and the euro for so long as the euro is and shall remain an
Eligible Currency".
1.2. Section 1.1 of the Credit Agreement is hereby amended to
insert in the definition of "Swing Line Lender" immediately after the phrase
"other Lender" the following:
"or any affiliate of such Lender".
1.3. Section 1.1 of the Credit Agreement is hereby amended to
add alphabetically the following defined terms:
"ELIGIBLE CURRENCY" means any currency other than Dollars with
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respect to which the Agent has not given notice in accordance
with Section 2.28 and that is readily available, freely
traded, in which deposits are customarily offered to banks in
the London interbank market, convertible into Dollars in the
international interbank market and as to which an Equivalent
Amount may be readily calculated.
"'EURO' means the lawful currency of the member states of the
European Community that adopted the single currency in
accordance with the third stage of the Economic and Monetary
Union in accordance with the treaty establishing the European
Community as amended by the Treaty on European Union."
"'NATIONAL CURRENCY UNIT' means the unit of currency (other
than a euro unit) of each member state of the European Union
that participates in the third stage of Economic and Monetary
Union."
"'YEAR 2000 ISSUES' means, with respect to any Person,
anticipated costs, problems and uncertainties associated with
the inability of certain computer applications and imbedded
systems to effectively handle data, including dates, prior to,
on and after January 1, 2000, as it affects the business,
operations, and financial condition of such Person, and such
Person's customers, suppliers and vendors."
1.4. Section 2.2 of the Credit Agreement is hereby amended by
adding immediately at the end of the first sentence thereof, the following:
"provided that each such Revolving Loan shall be made in the
euro if such Revolving Loan would be capable of being made in
the euro or the National Currency Unit requested by the
applicable Borrower, unless otherwise consented to by the
Agent."
1.5. Section 2.2.A of the Credit Agreement is hereby amended
to delete the phrase "in Dollars only, to the applicable Borrower from time to
time in an amount not to exceed" and to substitute therefor the following:
"in an Agreed Currency, to the applicable Borrower from time
to time in a Dollar Amount not to exceed".
1.6. Section 2.6 of the Credit Agreement is hereby amended to
delete the phrase "The amount of the Aggregate Acquisition Facility Commitment"
and to substitute therefor the following:
"The Dollar Amount of the Aggregate Acquisition Facility
Commitment".
1.7. Section 2.8(b) of the Credit Agreement is hereby amended
to replace the pricing grid now contained therein with the following:
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APPLICABLE BASE APPLICABLE BASE APPLICABLE EUROCURRENCY APPLICABLE APPLICABLE
SENIOR DEBT RATIO RATE MARGIN FOR RATE MARGIN FOR MARGIN FOR TRANCHE A TERM EUROCURRENCY COMMITMENT
TRANCHE A TERM TRANCHE B TERM LOANS AND REVOLVING LOANS MARGIN FOR FEE
LOANS AND LOANS AND APPLICABLE LETTER OF TRANCHE B
REVOLVING LOANS CREDIT FEE TERM LOANS
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GREATER THAN OR
EQUAL TO 4.0 TO 2.00% 2.50% 3.00% 3.50% 0.50%
1.0
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LESS THAN 4.0 TO
1.0 AND GREATER
THAN OR EQUAL TO 1.75% 2.25% 2.75% 3.25% 0.50%
3.5 TO 1.0
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LESS THAN 3.5 TO
1.0 AND GREATER
THAN OR EQUAL TO 1.50% 2.00% 2.50% 3.00% 0.50%
3.0 TO 1.0
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LESS THAN 3.0 TO
1.0 AND GREATER
THAN OR EQUAL TO 1.25% 1.75% 2.25% 2.75% 0.50%
2.5 TO 1.0
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LESS THAN 2.5 TO
1.0 AND GREATER
THAN OR EQUAL TO 1.00% 1.50% 2.00% 2.50% 0.50%
2.0 TO 1.0
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LESS THAN 2.0 TO
1.0 0.75% 1.25% 1.75% 2.25% 0.375%
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1.8. Article V of the Credit Agreement is hereby amended to
add a new Section 5.27 as follows:
"5.27. Year 2000 Issues. The Borrowers have made a reasonable
assessment of the Year 2000 Issues with respect to the
Borrowers and have a program for remediating such Year 2000
Issues on a timely basis. Based on this assessment and
program, the Borrowers do not anticipate any Material Adverse
Effect on the Borrowers' operations, business or financial
condition as a result of Year 2000 Issues."
1.9. Section 6.2 of the Credit Agreement is hereby amended to
add a new Section O as follows:
"(O) Year 2000 Issues. The Borrowers shall, and shall cause
each of their
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respective Subsidiaries to, take all actions reasonably
necessary to ensure that the Year 2000 Issues will not have a
Material Adverse Effect. The Borrowers shall provide the Agent
and each of the Lenders information regarding the Borrower's
and its Subsidiaries' program to address Year 2000 Issues. The
Borrower shall advise the Agent if any Year 2000 Issues will
have or would reasonably be expected to have a Material
Adverse Effect."
1.10. Section 6.3(D)(xi) of the Credit Agreement is hereby
amended to delete the reference to "C $2,500,000" and to substitute therefor the
following:
"U.S. $5,500,000".
1.11. Section 6.3(E)(vi) of the Credit Agreement is hereby
amended to delete the reference to "$500,000" and to substitute therefor the
following:
"$1,000,000".
1.12. Section 6.3(E)(viii) o the Credit Agreement is hereby
amended to insert immediately after the reference to "AAS" the following:
"and Valley".
1.13. Section 6.4(B) of the Credit Agreement is hereby amended
to delete the reference to "$4,000,000" now contained therein and to substitute
therefor:
"$4,500,000".
1.14. Section 6.4(C) of the Credit Agreement is hereby amended
to delete the phrase: "(5) 1.50 to 1.00 for each fiscal quarter thereafter until
the Tranche B Loan Termination Date" and to substitute the following therefor:
"(5) 1.20 to 1.00 for the fiscal quarters ending
December 31, 1998 and March 31, 1999;
"(6) 1.35 to 1.00 for the fiscal quarters ending June
30, 1999, September 30, 1999 and December 31, 1999; and
"(7) 1.50 to 1.00 for each fiscal quarter thereafter
until the Tranche B Loan Termination Date."
1.15. Section 6.4(E) of the Credit Agreement is hereby amended
to delete the ratios listed on the table now contained therein for December 31,
1998 through December 31, 1999 and to substitute the following therefor for the
periods ending on the dates set forth below:
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"Period Ending Maximum Leverage Ratio
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December 31, 1998 5.00 to 1.00
March 31, 1999 5.00 to 1.00
June 30, 1999 4.75 to 1.00
September 30, 1999 4.50 to 1.00
December 31, 1999 4.50 to 1.00"
1.16. Section 6.4(F) of the Credit Agreement is hereby amended
to delete the reference to "$10,000,000" now contained therein and to substitute
therefor the following:
"$12,500,000".
2. Waiver. The Borrowers have advised the Administrative Agent
that the Borrowers may not have been in compliance with Section 6.3(D)(xi) of
the Credit Agreement prior to the effective date of this Amendment and,
accordingly, have requested that the Required Lenders waive any Default that
would otherwise result from such noncompliance. By executing this Amendment No.
5 and Waiver, each Lender doing so hereby confirms its agreement to waive such
noncompliance.
3. Conditions of Effectiveness. The effectiveness of this
Amendment is subject to the conditions precedent that the Administrative Agent
shall have received counterparts of this Amendment duly executed by the
Borrowers, the Required Lenders and the Agents and payment of an amendment fee
of 0.125% of the current Revolving Loan Commitment and the current outstanding
balance of the Term Loans of each Lender that approves this Amendment and
delivers a copy of its signed signature page of this Amendment to the
Administrative Agent or its counsel by 5:00 p.m. (Chicago time), Friday, March
19, 1999. Upon the satisfaction of the foregoing conditions precedent, this
Amendment shall become effective with respect to the amendments set forth in
Section 1 above.
4. Representations and Warranties of the Borrowers. Each
Borrower hereby represents and warrants as follows:
(a) This Amendment and the Credit Agreement as amended hereby
constitute legal, valid and binding obligations of the Borrowers and are
enforceable against the Borrowers in accordance with their terms.
(b) As of December 31, 1998, (i) there exists no Default or
Unmatured Default under the Credit Agreement, as amended hereby, and (ii) the
representations and warranties contained in Article V of the Credit Agreement,
as amended hereby, are true and correct in all material respects, except for
representations and warranties made with reference to a specific date which
representations and warranties are true and correct in all material respects as
of such date.
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5. Reference to and Effect on the Credit Agreement and
Security Agreements.
(a) Upon the effectiveness of Section 1 hereof, each reference
in any Loan Document to such Loan Document or any other Loan Document shall mean
and be a reference to the applicable Loan Document as amended hereby.
(b) Except as specifically amended above, the Credit Agreement
and all other documents, instruments and agreements executed and/or delivered in
connection therewith shall remain in full force and effect and are hereby
ratified and confirmed.
(c) The execution, delivery and effectiveness of this
Amendment shall not, except as expressly provided herein, operate as a waiver of
any right, power or remedy of the Agents or the Lenders, nor constitute a waiver
of any provision of the Credit Agreement or any other documents, instruments and
agreements executed and/or delivered in connection therewith.
6. Governing Law. This Amendment shall be governed by and
construed in accordance with the laws of the State of New York.
7. Headings. Section headings in this Amendment are included
herein for convenience of reference only and shall not constitute a part of this
Amendment for any other purpose.
8. Counterparts. This Amendment may be executed by one or more
of the parties hereto on any number of separate counterparts, and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument.
IN WITNESS WHEREOF, this Amendment has been duly executed as
of the day and year first above written.
ADVANCED ACCESSORY SYSTEMS, LLC
as a Borrower
By: /s/ Terence C. Seikel
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Name: Terence C. Seikel
Title: Vice President
SPORTRACK, LLC
as a Borrower
By: ADVANCED ACCESSORY SYSTEMS, LLC
Its Manager
By: /s/ Terence C. Seikel
-------------------------------
Name: Terence C. Seikel
Title: Vice President
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VALLEY INDUSTRIES, LLC
as a Borrower
By: ADVANCED ACCESSORY SYSTEMS, LLC
Its Manager
By: /s/ TERENCE C. SEIKEL
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Name: TERENCE C. SEIKEL
Title: Vice President
BRINK INTERNATIONAL BV
as a Borrower
By: /s/ TERENCE C. SEIKEL
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Name: TERENCE C. SEIKEL
Title: Vice President
BRINK BV
as a Borrower
By: /s/ TERENCE C. SEIKEL
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Name: TERENCE C. SEIKEL
Title: Vice President
NBD BANK
as the Administrative Agent and the
Documentation and Collateral Agent,
and as a Lender
By: /s/ WILLIAM H. CANNEY
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Name: WILLIAM H. CANNEY
Title: Vice President
THE CHASE MANHATTAN BANK
as the Co-Administrative Agent and
the Syndication Agent, and as a
Lender
By: /s/ ANDRIS G. KALNINS
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Name: ANDRIS G. KALNINS
Title: Vice President
FIRST UNION NATIONAL BANK
as a Lender
By: /s/ KENT J. DAVIS
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Name: KENT J. DAVIS
Title: Vice President
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THE BANK OF NOVA SCOTIA
as a Lender
By: /s/ F. C. H. ASHBY
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Name: F. C. H. ASHBY
Title: Senior Manager
Loan operations
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COOPERATIEVE CENTRALE
RAIFFEISEN-BOERENLEENBANK
B.A., "RABOBANK NEDERLAND",
NEW YORK BRANCH
as a Lender
By:
-------------------------------
Name:
Title:
----------------------------
By:
-------------------------------
Name:
Title:
LASALLE NATIONAL BANK
as a Lender
By:
-------------------------------
Name:
Title:
MICHIGAN NATIONAL BANK
as a Lender
By:
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Name:
Title:
NATIONAL CITY BANK (CLEVELAND)
as a Lender
By: /s/ JOSHUA R. SOSLAND
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Name: JOSHUA R. SOSLAND
Title: Account Officer
COMERICA BANK
as a Lender
By: /s/ NICHOLAS G. MESTER
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Name: NICHOLAS G. MESTER
Title: Vice President
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VAN KAMPEN PRIME RATE INCOME TRUST
as a Lender
By: /s/ JEFFEREY W. MAILLER
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Name: JEFFEREY W. MAILLER
Title: Senior Vice President
and Director
DEBT STRATEGIES FUND, INC.
as a Lender
By:
-------------------------------
Name:
Title:
SENIOR HIGH INCOME PORTFOLIO, INC.
as a Lender
By:
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Name:
Title:
DEEPROCK & CO.
By: Eaton Vance Management
as Investment Advisor
By:
---------------------------
Name:
Title:
SENIOR DEBT PORTFOLIO
By: Boston Management and Research
as Investment Advisor
By: /s/ SCOTT H. PATE
---------------------------
Name: SCOTT H. PATE
Title: Vice President
MERRILL LYNCH DEBT STRATEGIES
PORTFOLIO
By: Merrill Lynch Asset Management,
L.P., as Investment Advisor
By: /s/ PAUL TRAVERS
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NAME: PAUL TRAVERS
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MERRILL LYNCH PRIME RATE PORTFOLIO
By: Merrill Lynch Asset Management,
L.P., as Investment Advisor
By: /s/ PAUL TRAVERS
---------------------------
Name: PAUL TRAVERS
Title: Authorized Signatory
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