EXHIBIT 10.4
EXECUTION COPY
CONSENT AND AMENDMENT
CONSENT AND AMENDMENT, dated as of October 26, 2000 (this "Consent"), to
the Amended and Restated Credit Agreement, dated as of March 6, 1998, (as
amended, supplemented or otherwise modified from time to time, the "Agreement")
among AFTERMARKET TECHNOLOGY CORP., a Delaware corporation (the "Borrower"), the
several banks and other financial institutions or entities from time to time
parties to the Agreement (the "Lenders"), and THE CHASE MANHATTAN BANK, a New
York banking corporation, as agent (in such capacity, the "Agent").
W I T N E S S E T H
- - - - - - - - - -
WHEREAS, the Borrower, the Lenders and the Agent are parties to the
Agreement; and
WHEREAS, the Borrower, the Distribution Group, the Lenders and the Agent
are parties to the Guarantee and Collateral Agreement; and
WHEREAS, the Borrower wishes to sell (the "Distribution Group Sale") the
Distribution Group pursuant to the Stock Purchase Agreement, dated as of October
__, 2000, by and between ATCDG Acquisition Corp., Inc., a Delaware corporation
(the "Buyer") and the Borrower (the "Stock Purchase Agreement"); and
WHEREAS, the Borrower has requested that the Agent and the Required
Lenders consent to the Distribution Group Sale and agree to amend certain
negative covenants and other provisions contained in the Agreement.
NOW THEREFORE, in consideration of the premises contained herein, the
parties hereto agree as follows:
1. Defined Terms. Unless otherwise defined herein, capitalized terms
which are defined in the Agreement are used herein as defined therein.
2. Consent. The Lenders hereby consent to the Distribution Group
Sale on or before November 30, 2000, on terms substantially consistent with the
Stock Purchase Agreement; provided that the Net Proceeds (to the extent, in this
instance, solely of cash received at the closing of the Distribution Group Sale)
thereof are not less than $56,000,000 plus or minus any adjustments for "Net
Working Capital" and "Net Cash" as defined in the Stock Purchase Agreement
(which are expected to be not greater than $5,000,000); and provided, further,
that concurrently with the Distribution Group Sale (i) a portion of the Net
Proceeds from such sale equal to $40,000,000 shall be applied to permanent
prepayments of the Term Loans, pro rata to the holders thereof, and the
remainder shall be applied to prepayments of the Revolving Credit Loans, pro
rata to the holders thereof, and (ii) the Borrower shall grant to the Agent, for
the ratable benefit of the Lenders, a first priority security interest in (a)
the shares of the Buyer's Series B Preferred Stock issued to the Borrower
pursuant to the Stock Purchase Agreement and (b) any and all promissory notes
issued to the Borrower pursuant to the Stock Purchase
Agreement. The Distribution Group Sale shall be deemed not to be a utilization
of any availability under the basket for asset sales set forth in Section
8.6(b).
3. Release, etc. The undersigned acknowledge that upon the
consummation of the Distribution Group Sale as contemplated hereby, the assets
and entities transferred thereby shall automatically be deemed to be released
from the Guarantee and Collateral Agreement, and the liens and guarantee
obligations of the Distribution Group under the Guarantee and Collateral
Agreement shall be terminated. The Agent agrees and is hereby authorized by the
Required Lenders to execute reasonable and customary release instruments,
including UCC-3 filings evidencing such release and termination.
4. Amendments to Section 1.1. (a) The definitions of "Consolidated
EBITDA", "Consolidated Interest Expense" and "Leverage Ratio" in subsection 1.1
of the Agreement are hereby amended by deleting the date "October 31, 2000" from
each place such date occurs within such definitions and substituting in lieu
thereof the date "November 30, 2000".
(b) Section 1.1 of the Agreement is hereby amended by adding the
following new definition in appropriate alphabetical order:
""Consent Effective Date": the date of effectiveness of the Consent
and Amendment, dated as of October __, 2000, to this Agreement."
5. Amendment to Section 3.1(b)(ii). Section 3.1(b)(ii) of the
Agreement is hereby amended by adding at the end thereof, immediately prior to
the period, the following proviso:
"provided, that Letters of Credit which have an aggregate face
amount of not greater than $2,500,000 and are issued in connection with
the Distribution Group Sale shall expire no later than the earlier of (A)
the date that is 24 months after the date of issuance thereof and (B) the
fifth Business Day prior to the Termination Date"
6. Amendment to Section 8.1(a). Section 8.1(a) of the Agreement is
hereby amended by deleting the permitted maximum Leverage Ratios listed therein
for the last day of the Borrower's fiscal quarters ending December 31, 2000 and
March 31, 2001 and inserting in lieu thereof the following permitted maximum
Leverage Ratios:
December 31, 2000 3.50 to 1.0
March 31, 2001 3.50 to 1.0
7. Amendment to Section 8.1(b). Section 8.1(b) of the Agreement is
hereby amended by deleting the minimum permitted interest coverage ratios listed
therein for the Borrower's five consecutive fiscal quarters ending December 31,
2000, March 31, 2001, June 30, 2001, September 31, 2001 and December 31, 2001
and inserting in lieu thereof the following minimum permitted interest coverage
ratios:
December 31, 2000 2.10 to 1.0
March 31, 2001 2.10 to 1.0
June 30, 2001 2.25 to 1.0
September 30, 2001 2.50 to 1.0
December 31, 2001 2.50 to 1.0
8. Amendment to Section 8.4. Section 8.4 of the Agreement is hereby
amended by (i) deleting the word "and" appearing at the end of clause (g)
thereof and substituting therefore a comma, (ii) replacing the period at the end
of clause (h) thereof with the phrase ", and" and (iii) adding at the end of
such section the following:
"(i) Guarantee Obligations of the Borrower in existence on the
Consent Effective Date in respect of the obligations of the Distribution Group
under certain real estate and equipment operating leases so long as (i) the
Borrower shall continue to be fully indemnified under the Stock Purchase
Agreement in respect of any loss or expense which the Borrower may sustain or
incur as a consequence of such Guarantee Obligations, (ii) the aggregate
Consolidated Lease Expense in connection with such operating leases for any
one-month period shall not exceed $500,000, and (iii) the aggregate maximum
amount of such Guarantee Obligations during the periods set forth below shall
not exceed the amount set forth opposite each such period:
Period Amount
------ ------
Consent Effective Date - December 30, 2000 $10,000,000
December 31, 2000 - December 30, 2001 $9,500,000
December 31, 2001 - December 30, 2002 $6,500,000
December 31, 2002 - December 30, 2003 $4,500,000
December 31, 2003 - December 30, 2004 $3,500,000"
9. Amendment to Schedule A. Schedule A of the Agreement is hereby
amended by deleting the pricing grid contained therein in its entirety and
substituting in lieu thereof the following pricing grid:
--------------------------------------------------------------------------------
Eurodollar ABR Applicable
Leverage Ratio Commitment Fee Rate Applicable Margin Margin
--------------------------------------------------------------------------------
Greater than 0.500% 2.50% 1.50%
5.00:1.00
--------------------------------------------------------------------------------
Less than or equal
to 5.00:1.00 and
greater than
4.50:1.00 0.500% 2.25% 1.25%
--------------------------------------------------------------------------------
Less than or equal
to 4.50:1.00 and
greater than
3.00:1.00 0.50% 2.00% 1.00%
--------------------------------------------------------------------------------
Less than or equal
to 3.00:1.00 and
greater than
2.50:1.00 0.375% 1.75% 0.25%
--------------------------------------------------------------------------------
Less than or equal 0.30% 1.50% 0.00%
to 2.50:1.00
--------------------------------------------------------------------------------
10. Effectiveness. This Amendment shall become effective on and as
of the date that the Agent shall have received:
(a) counterparts of this Amendment, duly executed and delivered by a
duly authorized officer of each of the Borrower, the Agent, and the Required
Lenders, along with the written consent of each Subsidiary Guarantor in the form
attached hereto;
(b) an amendment fee for the account of each Lender executing this
Amendment and delivering its executed signature page to the Agent prior to 5pm,
New York City time, on October 26, 2000 in the amount equal to 0.075% of the sum
of such Lender's Aggregate Outstanding Extensions of Credit and its unutilized
Commitments as of such date.
11. Representations and Warranties. On and as of the date hereof and
after giving effect to this Consent the Borrower hereby confirms, reaffirms and
restates the representations and warranties set forth in the Agreement mutatis
mutandis, except to the extent that such representations and warranties
expressly relate to a specific earlier date in which case the Borrower hereby
confirms, reaffirms and restates such representations and warranties as of such
earlier date.
12. Limited Effect. The execution, delivery and effectiveness of
this Consent shall not, except as expressly provided herein, operate as an
amendment or waiver of any right, power or remedy of any Lender or the Agent
under any of the Loan Documents, nor constitute an amendment or waiver of any
provision of any of the Loan Documents. Except as expressly provided herein, all
of the provisions and covenants of the Agreement and the other Loan Documents
are and shall continue to remain in full force and effect in accordance with the
terms thereof and are hereby in all respects ratified and confirmed.
13. Expenses. The Borrower agrees to pay and reimburse the Agent for
all its reasonable costs and expenses incurred in connection with the
preparation and delivery of this Consent, including, without limitation, the
reasonable fees and disbursements of counsel to the Agent.
14. Counterparts. This Consent may be executed by one or more of the
parties to this Consent on any number of separate counterparts (including by
telecopy), and all of said counterparts taken together shall be deemed to
constitute one and the same instrument. A set of the copies of this Consent
signed by the parties hereto shall be delivered to the Borrower and theAgent.
15. GOVERNING LAW. THIS CONSENT AND THE RIGHTS AND OBIGATIONS OF THE
PARTIES UNDER THIS CONSENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED
IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK WITHOUT REGARD TO THE
PRINCIPLES OF CONFLICTS OF LAWS THEREOF.
IN WITNESS WHEREOF, the parties hereto have caused this Consent to be executed
and delivered by their respective duly authorized officers as of the date first
above written.
AFTERMARKET TECHNOLOGY CORP., as Borrower
By: /s/ Xxxxxx Xxxxxxxxxxxx
------------------------------------
Name: Xxxxxx Xxxxxxxxxxxx
Title: Vice President and Secretary
THE CHASE MANHATTAN BANK, as Agent and
as a Lender
By: /s/ Xxxxx X. Xxxx
------------------------------------
Name: Xxxxx X. Xxxx
Title: Vice President
BANK OF AMERICA, N.A.
By: /s/ Xxxxxxx X. Xxxxxxxx, Xx.
------------------------------------
Name: Xxxxxxx X. Xxxxxxxx, Xx.
Title: Vice President
THE BANK OF NOVA SCOTIA
By: /s/ M.D. Xxxxx
------------------------------------
Name: M.D. Xxxxx
Title: Agent
BANK ONE N.A.
By: /s/ Xxxx X. XxXxxxx
------------------------------------
Name: Xxxx X. XxXxxxx
Title: First Vice President
FIRST UNION NATIONAL BANK
By: /s/ Xxxx Xxxxx
------------------------------------
Name: Xxxx Xxxxx
Title: Vice President
XXXXXX TRUST AND SAVINGS BANK
By: /s/ Xxxxx X. Xxxxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Vice President
LASALLE BANK NATIONAL ASSOCIATION
By: /s/ Xxxxx X. Xxxx
------------------------------------
Name: Xxxxx X. Xxxx
Title: Vice President
NATIONAL CITY BANK
By: /s/ Xxxxxxxx X. Xxxxx
-------------------------------------
Name: Xxxxxxxx X. Xxxxx
Title: Account Officer
BANK OF NEW YORK
By: /s/ Xxxx X. Xxxxx, Xx.
------------------------------------
Name: Xxxx X. Xxxxx, Xx.
Title: Vice President
CREDIT AGRICOLE INDOSUEZ
By: /s/
------------------------------------
Name:
Title:
CONSENT
Each of the undersigned Guarantors hereby consents and agrees to the
provisions of the foregoing Amendment, and hereby affirms that upon the
effectiveness of the foregoing Amendment, each Loan Document to which it is a
party shall continue to be, and shall remain, in full force and effect.
AFTERMARKET TECHNOLOGY CORP.
By: /s/ Xxxxxx Xxxxxxxxxxxx
------------------------------------
Name: Xxxxxx Xxxxxxxxxxxx
Title: Vice President and Secretary
AARON'S AUTOMOTIVE PRODUCTS, INC.
By: /s/ Xxxxxx Xxxxxxxxxxxx
------------------------------------
Name: Xxxxxx Xxxxxxxxxxxx
Title: Vice President
ACI ELECTRONICS HOLDING CORP.
By: /s/ Xxxxxx Xxxxxxxxxxxx
------------------------------------
Name: Xxxxxx Xxxxxxxxxxxx
Title: Vice President
ACI ELECTRONICS INVESTMENT CORP.
By: /s/ Xxxxxx Xxxxxxxxxxxx
------------------------------------
Name: Xxxxxx Xxxxxxxxxxxx
Title: Vice President
ATC ELECTRONICS & LOGISTICS, L.P.
By: ACI ELECTRONICS HOLDING CORP.,
its General Partner
By: /s/ Xxxxxx Xxxxxxxxxxxx
------------------------------
Name: Xxxxxx Xxxxxxxxxxxx
Title: Vice President
ATS REMANUFACTURING, INC.
By: /s/ Xxxxxx Xxxxxxxxxxxx
------------------------------------
Name: Xxxxxx Xxxxxxxxxxxx
Title: Vice President
COMPONENT REMANUFACTURING
SPECIALISTS, INC.
By: /s/ Xxxxxx Xxxxxxxxxxxx
------------------------------------
Name: Xxxxxx Xxxxxxxxxxxx
Title: Vice President
AUTOCRAFT REMANUFACTURING CORP.
By: /s/ Xxxxxx Xxxxxxxxxxxx
------------------------------------
Name: Xxxxxx Xxxxxxxxxxxx
Title: Vice President
AUTOCRAFT INDUSTRIES, INC.
By: /s/ Xxxxxx Xxxxxxxxxxxx
------------------------------------
Name: Xxxxxx Xxxxxxxxxxxx
Title: Vice President
