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EXHIBIT 10.4.3
THIRD AMENDMENT TO
LOAN AGREEMENT
THIS THIRD AMENDMENT TO LOAN AGREEMENT (the "THIRD AMENDMENT") made and
entered into as of the 22 day of December, 1997 by and between:
AUTOMOTIVE ONE PARTS STORES, INC., a Florida corporation, whose mailing
address is 000 Xxxx Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxx 00000 (hereinafter
referred to "AUTOMOTIVE ONE")
and
A.P.S., INC., a Delaware corporation, and AUTOPARTS FINANCE COMPANY, INC.,
a Delaware corporation, each of whose mailing address is 15710 Xxxx X.
Xxxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxxx, Xxxxx 00000 (hereinafter
respectively referred to as "APS and AFCO")
W I T N E S S E T H:
WHEREAS, on or about February 20, 1997, Automotive One, APS and AFCO
entered into a certain Loan Modification Agreement (the "INITIAL LOAN
AGREEMENT") dated February 20, 1997 pursuant to which APS and AFCO renewed,
reinstated and extended to Automotive One certain existing indebtedness
(collectively, the "INDEBTEDNESS") as described in the Initial Loan Agreement.
The Initial Loan Agreement, along with other Loan Documents (as defined in the
Initial Loan Agreement) were executed at that time to provide relief to
Automotive One through July 31, 1997 (the "MATURITY DATE") at its request and
as an alternative to APS and AFCO exercising one or more of its creditor rights
or remedies in connection with the Indebtedness; and
WHEREAS, on or about July 31, 1997, Automotive One, APS and AFCO entered
into that certain Second Amendment to Loan Agreement (the "SECOND AMENDMENT")
dated July 31, 1997 pursuant to which APS and AFCO, among other matters,
extended the Maturity Date of the Initial Loan Agreement from July 31, 1997 to
December 31, 1997 (the "FIRST EXTENDED MATURITY DATE"); and
WHEREAS, Automotive One for one or more reasons is not able to pay off the
Indebtedness by the First Extended Maturity Date and has requested additional
time in order to raise the necessary funds to pay off the Indebtedness in full.
Accordingly, Automotive One has requested APS and AFCO to extend the First
Extended Maturity Date of December 31, 1997 to February 28, 1998 (the "SECOND
EXTENDED MATURITY DATE"), APS and AFCO are prepared to agree to said request by
Automotive One pursuant to the terms and conditions of this Third Amendment.
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NOW, THEREFORE, for and in consideration of the above premises and the
mutual covenants and agreements contained herein, Automotive One, APS and AFCO
agree as follows:
1. DEFINITIONS. Unless defined or re-defined in this Third Amendment,
capitalized terms contained herein shall have the meanings defined and set forth
in the Initial Loan Agreement, as amended by the Second Amendment.
2. AMENDMENT OF EXISTING DEFINITIONS. The following definition set forth
in Section 1.01 of the initial Loan Agreement is hereby amended as follows:
(a) "MATURITY DATE" shall mean the earlier to occur of (i) the date
of receipt by Automotive One of the proceeds of a public offering of shares
of its common stock which are registered with the Securities Exchange
Commission or (ii) February 28, 1998.
3. AMENDMENTS TO INITIAL LOAN AGREEMENT. The Initial Loan Agreement is
hereby amended as follows:
(a) In regard to Section 2.1, the following sets forth as of the
dates set forth below the following amounts due on each Indebtedness
described below:
Total
Accrued &
Accrued & Unpaid Unpaid
Principal Interest at Non- Interest at
Balance Default Rate Default Rate
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APS Indebtedness $2,434,995.73 $486,867.56 $460,278.91(1)
(as of 10/31/97)
AFCO Indebtedness $2,465,467.67 $383,918.04 $57,828.66(2)
(as of 10/31/97)
Open Account
Indebtedness
(i) Outstanding Past $586,892.53 N.A. See below.
Due Balance(3)
(ii) Delinquent past due $450,041.31 N.A. See below.
balance (i.e. the
"Delinquent
Amount") (as of
9/2/97)(4)
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(iii) Outstanding $121,657.00 N/A $99,679.51
Current Balance (5)
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TOTALS $6,059,054.27 $70,785.60(4) $663,647.40(6)
(1) This represents interest at the default rate calculated from the date of
maturity through October 31, 1997. This figure does not include accrued
interest at the contract rate prior to maturity.
(2) This represents default interest on past due principal balance amount of
loan balance without acceleration. If calculated on the accelerated balance
from date of initial default, interest amount would be substantially
greater.
(3) This represents the amount of the Open Account Indebtedness which was due
and owing as of January 25, 1997 less payments and credits which have been
applied to said Indebtedness from January 25, 1997 to October 31, 1997.
(4) This represents the amount which Automotive One owes to APS as of
September 2, 1997 for the purchase of product and which has not been paid
and is in default. Under Section 3.1 of the Initial Loan Agreement,
Automotive One was required on a weekly basis to pay to APS the amount due
for the immediately preceding weeks purchase of merchandise from APS. This
amount represents said purchases for which payment is past due as of
September 2, 1997 and has not been made and is inclusive of all credits
which may be charged against said amount. This amount referred to above as
the Delinquent Amount.
(5) This represents what is referred to as the current portion of the Open
Account Indebtedness and represents the amounts due for merchandise
purchases for the period beginning August 13, 1997. This amount must be
paid as set forth in Section 3.1 of the Initial Loan Agreement, i.e. on a
weekly basis.
(6) This does not include additional interest which is to be determined and is
to be added to these Totals as set forth in the above Table.
As set forth in Section 5 below, Automotive One reaffirms Section 2.3 of
the Initial Loan Agreement as to the foregoing amounts due and agrees that
said amounts are now absolutely and unconditionally due and owing to APS
and AFCO in accordance with the terms of the Loan Documents, as modified
hereby, and are not subject to any claim, counterclaim, or other rights of
off-set.
(b) In Section 2.4 of the Initial Loan Agreement, it sets forth in
subsection the date of June 25, 1997, which is an acknowledgement by all
parties that all Product Return Credits have been processed for returns
received from Automotive One on or prior to said date. The parties now
agrees that said date of "JUNE 25, 1997" is amended to read "NOVEMBER 30,
1997".
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(c) Section 2.4 of the Initial Loan Agreement also provides that
Automotive One is available to receive certain change over credits ("CHANGE
OVER CREDITS") in accordance with that certain letter dated February 25,
1997 from Xx. Xxxxxxx X. Xxxxxxx of APS to Mr. Xxxxx Xxxxxx of Automotive
One. In regard to these Change Over Credits, provided Automotive One is not
in default, and otherwise fulfills all its duties and obligations under the
Loan Documents, as modified by the Initial Loan Agreement, as amended by
that certain Second Amendment, and as further amended by this Third
Amendment, APS agrees to extend to February 28, 1998 the time period within
which Automotive One may apply for Change Over Credits. If, however,
Automotive One defaults under the Loan Documents, as modified by the
Initial Loan Agreement, the Second Amendment and this Third Amendment (and
said default is not cured within any applicable grace or notice period),
then unless waived by APS, Automotive One shall not be entitled to receive
any further Change Over Credits including any Change Over Credits for which
Automotive One has by said date made application for but not yet received.
(d) Default interest shall remain subject to the provisions of Section
3.3. If the Indebtedness is paid by Automotive One in accordance with
Section 3.1, then APS and AFCO agree to waive any right to default
interest.
4. REAFFIRMATION OF REMEDIES. In connection hereto, Automotive One has
reviewed (with the advice of counsel) the provisions of Article IV of the
Initial Loan Agreement and fully understands the provisions of all of said
Sections. Based upon said review, Automotive One specifically and expressly
reaffirms and ratifies all of the provisions of said Article IV. APS and AFCO
have requested this specific paragraph, in addition to the provisions set forth
in paragraph 3(a) above, as APS and AFCO have agreed to the extensions requested
of Automotive One as set forth in this Third Amendment in express reliance upon
the provisions set forth in Article IV, and elsewhere in the Initial Loan
Agreement.
5. AMOUNTS OWING ON INDEBTEDNESS. Automotive One does hereby state and
agree with APS and AFCO that the amounts set forth in paragraph 3(a) of this
Third Amendment are absolutely and unconditionally due and owing to APS and AFCO
as of the date hereof or the date described above, as applicable, and that said
amounts are not subject to any claims, counterclaims, defenses or other right of
off-sets whatsoever, provided, however, Automotive One shall be entitled to
Product Return Credits and Change Over Credits as expressly permitted under the
terms of the Initial Loan Agreement and this Third Amendment. To the extent
Automotive One does have any claim, counterclaim, defense or other right of
off-set (again, other than for Product Return Credits and Change Over Credits),
Automotive One does hereby (after consultation with counsel) expressly and
unconditionally waive any such claim, counterclaim, defense or other right of
off-set not only against the Indebtedness set forth above, but as to any and all
other matters involving APS and AFCO. Automotive One understands and
acknowledges that, among other provisions of this Third Amendment, APS and AFCO
would not have agreed to the requested extensions by Automotive One if
Automotive One was unwilling to reaffirm the Indebtedness and provide for the
waivers as set forth in this paragraph.
6. LOAN AGREEMENT. From and after the date of this Third Amendment, the
term "LOAN AGREEMENT", shall mean the Initial Loan Agreement, as modified by the
Second Amendment, and as further modified by this Third Amendment. Further, to
the extent applicable, all Loan Documents shall
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be deemed hereof to be automatically amended so as to refer to and reflect the
transactions contemplated by the Initial Loan Agreement, the Second Amendment
and this Third Amendment. This Third Amendment shall be deemed to be a permitted
amendment to the Initial Loan Agreement and, accordingly, shall be deemed to be
a Loan Document.
7. Guarantors. By their individual execution of this Agreement, Xx. Xxxxxx
X. Xxxxxx, III and Xxxxxx Xxx Xxxxxx, his wife, each a shareholder of Automotive
One, do hereby execute this Third Amendment for the following purposes:
(a) To acknowledge and agree that the obligations of APS and AFCO as
set forth herein are due and owing as set forth in this Third Amendment.
(b) To confirm and ratify each Loan Document.
(c) To confirm that the Guaranty is in full force and effect and is
not subject to any claim, counterclaim, defense, or other right of off-set.
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8. COSTS AND ATTORNEYS' FEES. In regard to the cost and attorneys' fees
incurred by APS and AFCO in connection with the matters contemplated by the
Initial Loan Agreement, the Second Amendment, as well as by this Third
Amendment, those costs and attorneys' fees will be added to the Indebtedness. As
such, the indebtedness does not include cost and attorneys' fees incurred by APS
and AFCO either in connection with the Initial Loan Agreement, the Second
Amendment or this Third Amendment, all of which will be added to the
Indebtedness.
9. RATIFICATION. Except as set forth in this Third Amendment, Automotive
One does hereby ratify and confirm the Initial Loan Agreement, and all other
Loan Documents.
IN WITNESS WHEREOF, each of the parties hereto has caused this Third
Amendment to be executed, sealed and delivered, as applicable, by their duly
authorized officers on the day and year first above written.
AUTOMOTIVE ONE PARTS STORES, INC.
By: /s/
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Xxxxxx X. Xxxxxx, III,
President
/s/
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Xxxxxx X. Xxxxxx, III,
individually, as a Guarantor
/s/
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Xxxxxx Xxx Xxxxxx,
individually, as a Guarantor
A.P.S., INC.
By: /s/ E. Xxxxxx Xxxxxx
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E. Xxxxxx Xxxxxx
Senior Vice President
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AUTOPARTS FINANCE COMPANY, INC.
By: /s/ E. Xxxxxx Xxxxxx
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E. Xxxxxx Xxxxxx,
Senior Vice President
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