1
Exhibit 10.58
THIRD AMENDMENT
THIRD AMENDMENT, dated as of December 20, 1999 (this
"AMENDMENT"), 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 from time to
time parties thereto (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 intends to borrow, in accordance with
Section 2.7 of the Agreement, additional Term Loans in an aggregate amount up to
$10,000,000; and
WHEREAS, the Borrower has requested that the Lenders agree to
amend certain negative covenants and other provisions contained in the
Agreement, and the Lenders and the Agent are agreeable to such request upon the
terms and subject to the conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and mutual
agreements contained herein, and for other valuable consideration the receipt of
which is hereby acknowledged, the Borrower, the Lenders and the Agent hereby
agree as follows:
DEFINITIONS. All terms defined in the Agreement shall have
such defined meanings when used herein unless otherwise defined herein.
. AMENDMENT OF SUBSECTION 1.1. (a) Subsection 1.1 of the
Agreement is hereby amended by adding the following new definition in
alphabetical order:
"TERM LOANS": the collective reference to the term loans made
pursuant to Section 2.4 and Section 2.7.
(b) Subsection 1.1 of the Agreement is hereby amended by:
(i) by deleting in its entirety clause (g) of the definition
of "Consolidated EBITDA" therein and substituting in lieu thereof the
following clause:
(g) for any calculation of Consolidated EBITDA for the purpose
of determining compliance with subsections 8.1(a) or 8.1(b),
in each case for any test period that includes the fiscal
quarter ended December 31, 1999, the amount of Special
Charges.
(ii) inserting at the end of the second proviso in the
definition of "Applicable Margin" therein the following clause:
PROVIDED FURTHER, that, notwithstanding the foregoing, for the
period from December __, 1999 until the first Adjustment Dated
to occur after delivery of the Borrower's financial statements
for the fiscal quarter ended June 30, 2000 pursuant to Section
7.1(b), the Applicable Margin in respect of Loans shall not be
less than 1.25% in the case of ABR Loans and 2.25% in the case
of Eurodollar Loans;
(iii) deleting the definition of "Special Charges" therein in
its entirety and substituting in lieu thereof the following
(a) extraordinary losses, special charges and non-cash charges
recorded in the fiscal quarter ended December 31, 1999, in
amount and nature not materially different from those items
presented to the Lenders during the conference call with the
Borrower on December 6, 1999, and in any case in an aggregate
amount not to exceed $9,500,000, and (b) severance and
restructuring charges recorded in any fiscal quarter ending in
1999, in amount and nature not materially different from those
items presented to the Lenders at their meeting with the
Borrower on March 10, 1999, and in any case in an aggregate
amount not to exceed $4,000,000.
. AMENDMENT OF SUBSECTION 2.4. Subsection 2.4 of the
Agreement is hereby amended by deleting the parenthetical " (a "Term Loan")"
therein.
. AMENDMENT OF SUBSECTION 4.1(a). Subsection 4.1(a) is
hereby amended by inserting at the end thereof but before the period therein the
following:
, and PROVIDED FURTHER that, notwithstanding the foregoing, for
the period from December __, 1999 until the first Adjustment Date
to occur after delivery of the Borrower's financial statements
for the fiscal quarter ended June 30, 2000 pursuant to Section
7.1(b), the commitment fee rate shall be .500%
. AMENDMENT OF SUBSECTION 4.3(a). Subsection 4.3(a) of
the Agreement is hereby amended by deleting such subsection in its entirety and
substituting in lieu thereof the following:
(a) Subject to adjustment pursuant to clause (c) of
this subsection, the Borrower shall repay Term Loans on each
date set forth below in the aggregate principal amount of
Dollars set forth opposite such date (it being understood that
payments of any installment amount due on or before December
31, 1999 shall be allocated only to the Term Loans made
pursuant to Section 2.4 and not to the Term Loans made
pursuant to Section 2.7):
DATE AMOUNT
December 31, 1999 $3,685,227.27
March 31, 2000 $5,439,952.15
June 30, 2000 $5,439,952.15
September 30, 2000 $5,439,952.15
December 31, 2000 $5,439,952.15
March 31, 2001 $6,799,940.19
June 30, 2001 $6,799,940.19
September 30, 2001 $6,799,940.19
December 31, 2001 $6,799,940.19
March 31, 2002 $6,799,940.19
June 30, 2002 $6,799,940.19
September 30, 2002 $6,799,940.19
December 31, 2002 $6,799,940.19
March 31, 2003 $6,799,940.19
June 30, 2003 $6,799,940.19
September 30, 2003 $6,799,940.19
December 31, 2003 $6,799,940.19
. AMENDMENT OF SUBSECTION 4.10. (a) Subsection 4.10(a)
of the Agreement is hereby amended by deleting such subsection in its entirety
and substituting in lieu thereof the following:
(a) Each borrowing by the Borrower of Revolving Credit Loans
from the Lenders hereunder, each payment by the Borrower on
account of any commitment fee hereunder and any reduction of
the Revolving Credit Commitments of the Lenders shall be made
(in each case, other than in respect of the Swing Line Loans)
pro rata according to the respective Revolving Credit
Commitment Percentages of the Lenders. Each payment (including
each prepayment other than any optional prepayment) by the
Borrower on account of principal of and interest on the Loans
(other than the Swing Line Loans) shall be made pro rata
according to the respective amounts then due and payable to
the Lenders (it being understood that payments of any
installment amount due on or before December 31, 1999 shall be
allocated only to the Term Loans made pursuant to Section 2.4
and not to the Term Loans made pursuant to Section 2.7). Each
optional prepayment of principal on the Loans (other than the
Swing Line Loans) shall be made pro rata according to the
respective outstanding principal amounts of the Loans then
being prepaid. All payments (including prepayments) to be made
by the Borrower hereunder, whether on account of principal,
interest, fees or otherwise, shall be made without set off or
counterclaim and shall be made prior to 12:00 Noon, New York
City time, on the due date thereof to the Agent, for the
account of the Lenders, at the Agent's office specified in
subsection 11.2, in Dollars and in
immediately available funds. The Agent shall distribute such
payments to the Lenders promptly upon receipt in like funds as
received. If any payment hereunder becomes due and payable on
a day other than a Business Day, such payment shall be
extended to the next succeeding Business Day, and, with
respect to payments of principal, interest thereon shall be
payable at the then applicable rate during such extension.
(b) Subsection 4.10(b) of the Agreement is hereby amended by (i)
designating such subsection as 4.10(c) and (ii) inserting as a
new subsection 4.10(b) the following:
(b) Each payment shall be accompanied by written notice to the
Administrative Agent at or prior to the time thereof stating
whether or not such payment includes a payment of interest on
Term Loans and in such case designating whether such payment is
to be applied to Term Loans made pursuant to Section 2.4 or
Section 2.7 or a combination thereof.
. AMENDMENT OF SUBSECTION 6.2(e). Subsection 6.2(e) of the
Agreement is hereby amended by inserting the phrase "plus the aggregate amount
of Term Loans outstanding under Section 2.7" immediately after both usages
therein of the phrase "the aggregate Revolving Credit Exposures of all Lenders".
. AMENDMENT OF SUBSECTION 8.1(a). Subsection 8.1(a) of the
Agreement is hereby amended by deleting the permitted maximum Levarage Ratios
listed therein for the last day of the Borrower's fiscal quarters ending
December 31, 1999, March 31, 2000, June 30, 2000 and September 30, 2000 and
inserting in lieu thereof the following permitted maximum Leverage Ratios:
December 31, 1999 4.50 to 1.0
March 31, 2000 4.25 to 1.0
June 30, 2000 3.75 to 1.0
September 30, 2000 3.50 to 1.0
. AMENDMENT OF SUBSECTION 8.1(b). Subsection 8.1(b) of the
Agreement is hereby amended by deleting the minimum permitted interest coverage
ratios listed therein for the Borrower's four consecutive fiscal quarters ending
December 31, 1999, March 31, 2000, June 30, 2000 and September 30, 2000 and
inserting in lieu thereof the following minimum permitted interest coverage
ratios:
December 31, 1999 1.85 to 1.0
March 31, 2000 2.00 to 1.0
June 30, 2000 2.30 to 1.0
September 30, 2000 2.40 to 1.0
. AMENDMENT OF SCHEDULE 1.2. Schedule 1.2 to the Agreement is
hereby amended by deleting such schedule in its entirety and
substituting in lieu thereof Schedule A hereto.
. REPRESENTATIONS; NO DEFAULT. On and as of the date hereof,
and after giving effect to this Amendment, the Borrower confirms, reaffirms and
restates that the representations and warranties set forth in Section 5 of the
Agreement and in the other Loan Documents are true and correct in all material
respects, PROVIDED that the references to the Agreement therein shall be deemed
to be references to this Amendment and to the Agreement as amended by this
Amendment.
. CONDITIONS TO 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 executed certificate of an officer of the Borrower in
form satisfactory to the Agent as to the accuracy of the Borrower's
representations and warranties set forth in Section 5 of the Agreement and in
the other Loan Documents, the absence of any Default or Event of Default after
giving effect to this Amendment, and as to such other customary matters as the
Agent may reasonably request;
(c) a certificate of a Responsible Officer of the Borrower in
form satisfactory to the Agent as to the Borrower's compliance with subsection
8.17 after giving effect to this Amendment and the transactions contemplated
herein;
(d) a legal opinion in form and substance satisfactory to the
Agent; and
(e) an amendment fee for the account of each Lender executing
this Amendment and delivering its executed signature page to the Agent prior to
the close of business, New York City time, on December 20, 1999, in the amount
equal to 0.10% of the sum of such Lender's Aggregate Outstanding Extensions of
Credit and its unutilized Commitments as of such date (excluding any Aggregate
Outstanding Extensions of Credit or unutilized Commitments pursuant to Section
2.7 of the Agreement).
. LIMITED CONSENT AND AMENDMENT. Except as expressly amended
herein, the Agreement shall continue to be, and shall remain, in full force and
effect. This Amendment shall not be deemed to be a waiver of, or consent to, or
a modification or amendment of, any other term or condition of the Agreement or
any other Loan Document or to prejudice any other right or rights which the
Lenders may now have or may have in the future under or in connection with the
Agreement or any of the instruments or agreements referred to therein, as the
same may be amended from time to time.
. COSTS AND EXPENSES. The Borrower agrees to pay or reimburse
the Agent for all its reasonable and customary out-of-pocket costs and expenses
incurred in connection with the preparation, negotiation and execution of this
Amendment, and the consummation of the transactions contemplated hereby,
including, without limitation, the reasonable fees and disbursements of its
counsel.
. COUNTERPARTS. This Amendment may be executed by one or more
of the parties hereto in any number of separate counterparts and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument.
. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed and delivered by their respective duly authorized
officers as of the date first above written.
AFTERMARKET TECHNOLOGY CORP.
By:___________________________
Name:
Title:
THE CHASE MANHATTAN BANK, as
Agent and as a Lender
By:___________________________
Name:
Title:
BANK OF AMERICA NATIONAL
TRUST AND SAVINGS ASSOCIATION
By:___________________________
Name:
Title:
BANK OF NOVA SCOTIA
By:___________________________
Name:
Title:
BANK ONE N.A.
By:___________________________
Name:
Title:
FIRST UNION NATIONAL BANK
By:___________________________
Name:
Title:
XXXXXX TRUST AND SAVINGS BANK
By:___________________________
Name:
Title:
LASALLE BANK NATIONAL ASSOCIATION
By:___________________________
Name:
Title:
NATIONAL CITY BANK
By:___________________________
Name:
Title:
BANK OF NEW YORK
By:___________________________
Name:
Title:
CREDIT AGRICOLE INDOSUEZ
By:___________________________
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:____________________________
Name:
Title:
AARON'S AUTOMOTIVE PRODUCTS, INC.
By:____________________________
Name:
Title:
ACI ELECTRONICS HOLDING CORP.
By:____________________________
Name:
Title:
ACI ELECTRONICS INVESTMENT CORP.
By:____________________________
Name:
Title:
ATC ELECTRONICS & LOGISTICS, L.P.
By: ACI ELECTRONICS HOLDING CORP.,
its General Partner
By:____________________________
Name:
Title:
ATC DISTRIBUTION GROUP, INC.
By:____________________________
Name:
Title:
ATS REMANUFACTURING, INC.
By:____________________________
Name:
Title:
COMPONENT REMANUFACTURING
SPECIALISTS, INC.
By:____________________________
Name:
Title:
AUTOCRAFT REMANUFACTURING CORP.
By:____________________________
Name:
Title:
AUTOCRAFT INDUSTRIES, INC.
By:____________________________
Name:
Title:
Schedule A
SCHEDULE 1.2
Term Loan Commitments of Lenders
Section 2.4
LENDER TERM LOAN COMMITMENT
------ --------------------
The Chase Manhattan Bank $14,181,818.19
Bank of America National Trust and Savings Association $13,090,909.09
Bank of Nova Scotia $13,090,909.09
Bank One N.A. $13,090,909.09
First Union National Bank of North Carolina $13,090,909.09
Xxxxxx Trust and Savings Bank $13,090,909.09
LaSalle Bank National Association $13,090,909.09
National City Bank $10,909,090.91
Bank of New York $ 8,181,818.18
Credit Agricole Indosuez $ 8,181,818.18
Section 2.7
LENDER TERM LOAN COMMITMENT
------ --------------------
The Chase Manhattan Bank $1,954,545.50
Bank of America National Trust and Savings Association $1,954,545.50
Bank of Nova Scotia $1,090,909.00
Bank One N.A. $1,090,909.00
First Union National Bank of North Carolina $1,954,545.50
LaSalle Bank National Association $1,954,545.50
TOTAL TERM LOAN COMMITMENT $130,000,000
