Exhibit 99.1
AMENDMENT XX. 0
XXXXXXXXX XX. 0, dated as of August 10, 2004 (this "Amendment"), to
the Amended and Restated Credit Agreement, dated as of January 16, 2004 (as the
same has been amended prior to the date hereof and may be further amended,
supplemented or otherwise modified from time to time, the "Credit Agreement"),
among CSK Auto, Inc., an Arizona corporation (the "Company"), the several banks
and other financial institutions or entities from time to time party thereto
(the "Lenders"), Credit Suisse First Boston, acting through its Cayman Islands
Branch, as syndication agent for the Lenders and JPMorgan Chase Bank, as
administrative agent (in such capacity, the "Administrative Agent").
W I T N E S S E T H:
WHEREAS, the Company, the Lenders and the Administrative Agent are
parties to the Credit Agreement;
WHEREAS, the Company has requested that the Credit Agreement be
amended, among other things, (i) to provide for the Tranche B Refinancing (as
defined herein) and (ii) to effect certain other related amendments to the
Credit Agreement; and
WHEREAS, the Lenders parties hereto and the Administrative Agent are
willing to agree to such amendment to the Credit Agreement, subject to the terms
and conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and mutual
covenants contained herein, the Company, the Lenders parties hereto and the
Administrative Agent hereby agree as follows:
1. Defined Terms. Unless otherwise defined herein, capitalized terms
which are defined in the Credit Agreement are used herein as therein defined.
2. Amendments to Subsection 1.1 (Defined Terms).
(a) Subsection 1.1 of the Credit Agreement is hereby amended by
adding the following new definitions, to appear in alphabetical order:
"Amendment Effective Date": the date on which the conditions
precedent set forth in Section 12 of the Amendment, dated as of July 28,
2004 to this Agreement shall have been satisfied, which date is August 10,
2004.
"Converted Tranche C Term Loans": as defined in subsection 2.4
hereof.
"Credit Rating": means the S&P Rating and Xxxxx'x Rating.
"Xxxxx'x Rating": means a rating with reference to the Borrower's
long-term senior secured debt by Xxxxx'x Investors Services, Inc.
"S&P Rating": means a rating with reference to the Borrower's
long-term senior secured debt by Standard & Poor's Ratings Group, Inc.
"Tranche B Refinancing": the prepayment in full of the outstanding
Tranche B Term Loans with the proceeds of the Tranche C Term Loans.
"Tranche C Term Loans": as defined in subsection 2.4 hereof.
"Tranche C Term Loan Commitment": as to any Lender, its obligation
to make a Tranche C Term Loan to the Company pursuant to subsection 2.4 in
an aggregate amount not to exceed the amount set forth under such Lender's
name in Schedule 1.1 opposite the caption "Tranche C Term Loan Commitment"
or in Schedule 1 to the Assignment and Acceptance pursuant to which a
Lender acquires its Tranche C Term Loan Commitment, as the same may be
adjusted pursuant to subsection 11.6(c); collectively, as to all the
Lenders, the "Tranche C Term Loan Commitments." The original aggregate
principal amount of the Tranche C Term Loan Commitments is $253,725,000.
"Tranche C Term Loan Lender": any Lender with a Tranche C Term Loan
Commitment or that holds a Tranche C Term Loan.
"Tranche C Term Loan Commitment Percentage": as to any Tranche C
Term Loan Lender at any time, the percentage of the aggregate Tranche C
Term Loan Commitments then constituted by such Tranche C Term Loan
Lender's Tranche C Term Loan Commitment (or, at any time after the
Amendment Effective Date, the percentage of the aggregate outstanding
principal amount of the Tranche C Term Loans then constituted by the
principal amount of such Tranche C Term Loan Lender's Tranche C Term
Loans).
"Tranche C Term Loan Note": as defined in subsection 4.13(e).
(b) The definition of "Applicable Margin" in subsection 1.1 of the
Credit Agreement is hereby amended by:
(i) deleting the term "Tranche B Term Loans and inserting in
lieu thereof "Tranche C Term Loans";
(ii) deleting the table contained therein and inserting in
lieu thereof the following new table; and
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Alternate Base Eurodollar
Rate Loans Loans
-------------- ----------------
Tranche C Term Loans 1.00% 2.00%
Revolving Loans and
Additional Revolving
Loans 1.75% 2.75%
Swing Line Loans 1.75% N/A
(iii) inserting the phrase "or the Borrower's Credit Rating"
at the end of the definition immediately following "(b)":
(c) The definition of "Class" in subsection 1.1 of the Credit
Agreement is hereby amended by:
(i) deleting the term "Tranche B Term Loan" and inserting in
lieu thereof "Tranche C Term Loan"; and
(ii) deleting the term "Tranche B Term Loan Commitment" and
inserting in lieu thereof "Tranche C Term Loan Commitment".
(d) The definition of "Commitment" in subsection 1.1 of the Credit
Agreement is hereby amended by deleting the term "Tranche B Term Loan
Commitment" and inserting in lieu thereof "Tranche C Term Loan Commitment".
(e) The definition of "Commitment Percentage in subsection 1.1 of
the Credit Agreement is hereby amended by deleting the term "Tranche B Term Loan
Commitment Percentage" and inserting in lieu thereof the term "Tranche C Term
Loan Commitment Percentage".
(e) The definition of "Consolidated Total Funded Debt" in subsection
1.1 of the Credit Agreement is hereby amended by deleting the term "Tranche B
Term Loans" and inserting in lieu thereof the term "Tranche C Term Loans".
(f) The definition of "Loans" in subsection 1.1 of the Credit
Agreement is hereby amended by deleting the term "Tranche B Term Loans" and
inserting in lieu thereof "Tranche C Term Loans".
(g) The definition of "Maturity Date" in subsection 1.1 of the
Credit Agreement is hereby amended by deleting the term "Original Closing Date"
and inserting in lieu thereof "Amendment Effective Date".
(h) The definition of "Notes" in subsection 1.1 of the Credit
Agreement is hereby amended by deleting the term "Tranche B Term Loan Notes" and
inserting in lieu thereof
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"Tranche C Term Loan Notes".
(i) The definition of "Required Lenders" in subsection 1.1 of the
Credit Agreement is hereby amended by deleting the term "Tranche B Term Loans"
in subclause (ii) thereof and inserting in lieu thereof "Tranche C Term Loans".
(j) The definition of "Term Loan Note" in subsection 1.1 of the
Credit Agreement is hereby amended by deleting the term "Tranche B Term Loan
Note" and inserting in lieu thereof "Tranche C Term Loan Note".
(k) The definition of "Term Loans" in subsection 1.1 of the Credit
Agreement is hereby amended by deleting the term "Tranche B Term Loans" and
inserting in lieu thereof "Tranche C Term Loans".
3. Amendments to Subsection 1 (Definitions). Section 1 of the Credit
Agreement is hereby amended by:
(a) relettering existing subsection 1.5 as new subsection 1.6; and;
(b) adding the following new subsection 1.5:
"1.5 Confirmation/Ratification of the Tranche C Term Loans. The
Company hereby agrees that, as of the Amendment Effective Date, it
is fully and truly indebted to the Tranche C Term Loan Lenders for
the full amount of the Tranche C Term Loans stated herein.
Furthermore, without limiting any of the other provisions of this
Agreement, the Company agrees that (i) the Loans made to the Company
by the Tranche C Term Loan Lenders shall be subject to and shall
benefit from all of the provisions of this Agreement and the other
Credit Documents applicable to the Tranche C Term Loans and the
Loans hereunder and thereunder, (ii) the Tranche C Term Loan Lenders
are "Lenders" hereunder and under the other Credit Documents and
(iii) the unpaid principal of and interest on the Tranche C Term
Loans are "Obligations" (as defined in the Guarantee and Collateral
Agreement)."
4. Amendments to Section 2 (Tranche B Term Loans). Section 2 of the
Credit Agreement is hereby amended by:
(a) deleting the header "TRANCHE B TERM LOANS" and inserting in lieu
thereof "TERM LOANS";
(b) adding the following new subsection 2.4:
"2.4 Tranche C Term Loan Commitments. Subject to the terms and
conditions hereof, each Lender severally agrees to make a loan in
Dollars (or pursuant to the immediately succeeding sentence, elects
to convert all or a portion of such Lender's Tranche B Term Loans
into a loan) (each such loan or conversion, individually a "Tranche
C Term Loan"; and collectively, the "Tranche C Term Loans") to the
Company on the Amendment Effective Date, in an aggregate
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principal amount equal to such Lender's Tranche C Term Loan
Commitment. In connection with the making of the Tranche C Term
Loans pursuant to the immediately preceding sentence, by delivering
oral or written notice to the Administrative Agent at least two
Business Days prior to the Amendment Effective Date, any Lender of
Tranche B Term Loans who has agreed to become a Tranche C Term Loan
Lender may elect to make all or any portion of such Lender's Tranche
C Term Loan by converting all or a portion of the outstanding
principal amount of the Tranche B Term Loans held by such Lender
into a Tranche C Term Loan in a principal amount equal to the amount
of Tranche B Term Loans so converted (each such Tranche B Term Loan
to the extent it is to be converted, a "Converted Tranche B Term
Loan"). On the Amendment Effective Date, the Converted Tranche B
Term Loans shall be converted for all purposes of this Agreement
into Tranche C Term Loans, and the Administrative Agent shall record
in the Registrar the aggregate amounts of Converted Tranche B Term
Loans into Tranche C Term Loans. Any notice to the Administrative
Agent delivered by an applicable Lender pursuant to this subsection
shall specify the amount of such Lender's Tranche C Term Loan
Commitment and the principal amount of Tranche B Term Loans held by
such Lender that are to be converted into Tranche C Term Loans.";
(c) adding the following new subsection 2.5:
"2.5 Repayment of Tranche C Term Loans. The Company shall repay the
Tranche C Term Loans as provided in subsection 4.4(c)."; and
(d) adding the following new subsection 2.6:
"2.6 Use of Proceeds. The proceeds of the Tranche C Term Loans will
be used to refinance the Tranche B Term Loans.".
5. Amendments to Subsection 4.1 (Procedure for Borrowing).
Subsection 4.1 of the Credit Agreement is hereby amended by:
(a) deleting the term "Tranche B Term Loans" and inserting in lieu
thereof the term "Tranche C Term Loans"; and
(b) deleting the term "Closing Date" and inserting in lieu thereof
the term "Amendment Effective Date".
6. Amendments to Subsection 4.2 (Conversion and Continuation
Options). Subsection 4.2(a) of the Credit Agreement is hereby amended by:
(a) deleting the term "Tranche B Term Loans" and inserting in lieu
thereof "Tranche C Term Loans";
(b) deleting the term "Closing Date" and inserting in lieu thereof
"Amendment Effective Date"; and
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(c) deleting the term "Converted Term Loans" and inserting in lieu
thereof "Converted B Term Loans".
7. Amendments to Subsection 4.4 (Optional and Mandatory Prepayments;
Repayments of Tranche B Term Loans. Subsection 4.4 of the Credit Agreement is
hereby amended by:
(a) deleting the term "Tranche B Term Loans" and inserting in lieu
thereof "Tranche C Term Loans";
(b) adding the following new sentence at the end of subsection (a):
"Notwithstanding the foregoing, all voluntary prepayments of Tranche
C Term Loans effected on or prior to the first anniversary of the
Amendment Effective Date with the proceeds of a substantially
concurrent issuance or incurrence of Term Loans under this
Agreement, as amended, amended and restated, supplemented, waived or
otherwise modified from time to time (excluding a refinancing or
termination of all of the Loans and Commitments hereunder with
another transaction not permitted by this Agreement (as determined
by the Administrative Agent and the Borrower prior to giving effect
to any amendment or waiver of this Agreement being adopted in
connection with such transaction)), shall be accompanied by a
prepayment fee equal to 1.0% of the aggregate amount of such
prepayments if any of the interest rates payable in respect of such
Term Loans is less than the corresponding interest rate that would
have been payable in respect of the Tranche C Term Loans. No such
prepayment fee shall be payable with respect to any mandatory
prepayment hereunder, or any voluntary prepayment other than the
type described in the immediately preceding sentence."; and
(c) deleting subsection (c) and substituting it in its entirety with
the following new subsection (c):
"(c) The Tranche C Term Loans shall be repaid in twelve installments
on the dates set forth below (each such day, an "Installment Payment
Date"), commencing on December 31, 2004 in an aggregate amount equal
to the amount specified for each such Installment Payment Date.
Date Installment Amount
---- ------------------
December 31, 2004 $ 1,275,000
June 30, 2005 $ 1,275,000
December 31, 2005 $ 1,275,000
June 30, 2006 $ 1,275,000
December 31, 2006 $ 1,275,000
June 30, 2007 $ 1,275,000
December 31, 2007 $ 1,275,000
June 30, 2008 $ 1,275,000
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December 31, 2008 $ 1,275,000
June 30, 2009 $ 1,275,000
December 31, 2009 $120,487,500
Maturity Date $120,487,500"
8. Amendment to Subsection 4.5 (Interest Rates and Payment Dates).
Subsection 4.5 of the Credit Agreement is hereby amended by adding the following
new subsection (e):
"(e) Interest shall be payable in arrears on each Interest Payment
Date; provided, that all unpaid interest through the Amendment
Effective Date on Tranche B Term Loans that have been converted to
Tranche C Term Loans shall be deemed to expire and be due on the
Amendment Effective Date."
9. Amendments to Subsection 4.13 (Repayment of Loans; Evidence of
Debt). Subsection 4.13 of the Credit Agreement is hereby amended by:
(a) renumbering existing subclause (iv) in subsection (a) as new
subclause (v);
(b) adding the following new subclause (iv) to subsection (a)
immediately following "Section 9":
", (iv) the then unpaid principal amount of each Tranche C Term Loan
of such Lender on the Maturity Date or the date that the Tranche C
Term Loans become due and payable pursuant to Section 9"
(c) inserting in subsection (c) ", Tranche C Term Loan" immediately
following "Additional Revolving Loan";
(d) deleting the term "Tranche B Term Loan" in subsection (e) and
inserting in lieu thereof "Tranche C Term Loan"; and
(e) deleting the term "Tranche B Term Loan Note" in subsection (e)
and inserting in lieu thereof "Tranche C Term Loan Note".
10. Amendments to Subsection 11.6 (Successors and Assigns;
Participations and Assignments). Subsection 11.6 of the Credit Agreement is
hereby amended by:
(a) deleting the term "Tranche B Term Loan" and inserting in lieu
thereof "Tranche C Term Loan; and
(b) deleting the term "Tranche B Term Loan Notes" and inserting in
lieu thereof "Tranche C Term Loan Notes.
11. Amendments to Annex A (Pricing Grid). Annex A of the Credit
Agreement is hereby amended by:
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(a) deleting the second table contained therein and inserting in
lieu thereof the following new table:
Consolidated Leverage Tranche C Term Loans
Ratio / Credit Rating --------------------------
Alternate Eurodollar
Base Rate Loans
Loans
--------- ----------
(a) Consolidated Leverage 1.00% 2.00%
Ratio equal to or greater than
2.75x and (b) an S&P Rating of
less than BB- (with a stable
outlook) and a Xxxxx'x Rating
of less than Ba2 (with a
stable outlook)
(a) Consolidated Leverage 0.75% 1.75%
Ratio less than 2.75x or (b)
an S&P Rating of at least BB-
(with a stable outlook) and a
Xxxxx'x Rating of at least
Ba2 (with a stable outlook)
(b) inserting the phrase "or the Credit Rating" immediately after
the phrase "Consolidated Leverage Ratio" in the first instance where that phrase
occurs, and inserting the phrase "and the Credit Rating" immediately after the
phrase "Consolidated Leverage Ratio" in the second instance where that phrase
occurs.
12. Representations and Warranties.
(a) The Company hereby confirms, reaffirms and restates that the
representations and warranties set forth in Section 5 of the Credit Agreement
are true and correct in all material respects on and as of the Amendment
Effective Date as if made on and as of such date (unless stated to relate to a
specific earlier date, in which case, such representations and warranties shall
be true and correct in all material respects as of such earlier date). The
Company represents and warrants that, after giving effect to this Amendment, no
Default or Event of Default has occurred and is continuing.
(b) The Company hereby represents and warrants that the unaudited
consolidated balance sheet of the Company as at May 2, 2004, and the related
unaudited consolidated statements of income and cash flows for the three month
period ended on such date, present fairly the consolidated financial position of
the Company as at such date, and the consolidated results of its operations and
its consolidated cash flows for the three month period then ended (subject to
normal year end audit adjustments). All such financial statements, including the
related schedules and any notes thereto (except as contemplated by GAAP or in
the case of any notes to the financial statements dated as of May 2, 2004), have
been prepared in accordance
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with GAAP applied consistently throughout the periods involved (except as
approved by the aforementioned firm of accountants and disclosed therein).
13. Effectiveness. This Amendment shall become effective as of
Amendment Effective Date upon the satisfaction of the following conditions
precedent:
(a) Amendment. The Administrative Agent shall have received this
Amendment executed and delivered by the Administrative Agent, the Company, each
Lender with a Tranche C Term Loan Commitment and Lenders party to the Credit
Agreement constituting the "Required Lenders" thereunder.
(b) Fees. The Lenders and the Administrative Agent shall have
received all fees required to be paid on or before the Amendment Effective Date,
and all expenses required to be paid on or before the Amendment Effective Date
for which invoices have been timely presented, including, without limitation,
the reasonable fees and expenses of legal counsel, on or before the Amendment
Effective Date.
(c) Security Documents. The Administrative Agent shall have received
the Acknowledgment and Confirmation, substantially in the form of Exhibit A
hereto, executed and delivered by an authorized officer of the Company and each
other Loan Party.
(d) Tranche B Refinancing. The Tranche B Refinancing shall have been
consummated or arrangements reasonably satisfactory to the Administrative Agent
shall have been made for the consummation thereof.
(e) Legal Opinions. The Administrative Agent shall have received the
following executed legal opinions:
(i) the legal opinion of Xxxxxx, Xxxx & Xxxxxxxx LLP, counsel
to the Company, opining as to the enforceability of the
Amendment; and
(ii) the legal opinion of Xxxxx Xxxxxxxx, vice president,
assistant general counsel and secretary of Holdings and its
Subsidiaries, opining that the Company has due authorization
to effect the Tranche B Refinancing and the related Amendment.
14. Continuing Effect of the Credit Agreement. This Amendment shall
not constitute an amendment of any other provision of the Credit Agreement not
expressly referred to herein and shall not be construed as a waiver or consent
to any further or future action on the part of the Company that would require a
waiver or consent of the Lenders or the Administrative Agent. Except as
expressly amended hereby, the provisions of the Credit Agreement are and shall
remain in full force and effect.
15. Counterparts. This Amendment may be executed by the parties
hereto in any number of separate counterparts (including facsimiled
counterparts), each of which shall be deemed to be an original, and all of which
taken together shall be deemed to constitute one and the same instrument.
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16. GOVERNING LAW. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF
THE PARTIES UNDER THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
17. Expenses. The Company agrees to pay or reimburse the
Administrative Agent for all of its reasonable out-of-pocket costs and expenses
incurred in connection with the preparation, negotiation and execution of this
Amendment, including, without limitation, the fees and disbursements of one
counsel to the Administrative Agent.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed and delivered by their proper and duly authorized officers as
of the day and year first above written.
CSK AUTO, INC.
By: __________________________________
Name:
Title:
JPMORGAN CHASE BANK, as
Administrative Agent and as a Lender
By: __________________________________
Name:
Title:
Signature page to
the Amendment to the
CSK AUTO, INC. Amended and Restated Credit Agreement
[INSERT LENDER NAME]
By: __________________________________
Name:
Title:
EXHIBIT A
FORM OF ACKNOWLEDGMENT AND CONFIRMATION
1. Reference is made to Amendment NO. 2, dated as of August 10, 2004
(the "Amendment"), to the Amended and Restated Credit Agreement, dated as of
January 16, 2004 (as the same has been amended prior to the date hereof and may
be further amended, supplemented or otherwise modified from time to time, the
"Credit Agreement"), among CSK Auto, Inc., an Arizona corporation, the several
banks and other financial institutions or entities from time to time party
thereto (the "Lenders"), and JPMorgan Chase Bank, as administrative agent (in
such capacity, the "Administrative Agent").
2. Each of the parties hereto hereby agrees, with respect to each
Security Document to which it is a party:
(a) all of its obligations, liabilities and indebtedness under
such Security Document shall remain in full force and effect on a
continuous basis after giving effect to the Amendment and its guarantee of
the obligations, liabilities and indebtedness of the other Loan Parties
under the Credit Agreement (or any predecessor agreement) shall extend to
and cover the Tranche C Term Loans made under the Credit Agreement
pursuant to the Amendment and interest thereon and fees and expenses and
other obligations in respect thereof and in respect of commitments related
thereto; and
(b) all of the Liens and security interests created and
arising under such Security Document remain in full force and effect on a
continuous basis, and the perfected status and priority of each such Lien
and security interest continues in full force and effect on a continuous
basis, unimpaired, uninterrupted and undischarged, after giving effect to
the Amendment, as collateral security for its obligations, liabilities and
indebtedness under the Credit Agreement and under its guarantees in the
Security Documents.
3. THIS ACKNOWLEDGMENT AND CONFIRMATION SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
4. This Acknowledgment and Confirmation may be executed by one or
more of the parties hereto 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.
[rest of page intentionally left blank]
IN WITNESS WHEREOF, the parties hereto have caused this
Acknowledgement and Consent to be duly executed and delivered by their proper
and duly authorized officers as of the day and year first above written.
CSK AUTO, INC. CSK AUTO CORPORATION
By: _________________________________ By: ________________________________
Name: Name:
Title: Title:
XXXXXXX.XXX, INC. AUTOMOTIVE INFORMATION SYSTEMS, INC.
By: _________________________________ By: ________________________________
Name: Name:
Title: Title:
