Exhibit 10.52
AMENDMENT XX. 0
XXXXXXXXX XX. 0 dated as of July 23, 1999 to the
AMENDED AND RESTATED CREDIT AGREEMENT dated as of April 21,
1995 among THE PEP BOYS - MANNY, MOE & XXXX, the Banks
signatory thereto and THE CHASE MANHATTAN BANK, as Agent.
W I T N E S S E T H:
WHEREAS, the Company, the Banks and the Agent are
parties to the Amended and Restated Credit Agreement
referred to above (as heretofore amended, the "Credit
Agreement") pursuant to which the Banks have agreed to
extend credit to the Company as provided therein;
WHEREAS, the Company has requested the Banks and the
Agent to amend the Credit Agreement as hereinafter set
forth;
WHEREAS, the Majority Banks and the Agent are agreeable
to such amendment on the terms and conditions set forth
below;
NOW, THEREFORE, in consideration of the foregoing and
the mutual agreements contained herein it is hereby agreed
as follows:
Section 1. Definitions.
All terms defined in the Credit Agreement shall be used
herein as defined in the Credit Agreement unless otherwise
defined herein or the context otherwise requires.
Section 2. Amendments to the Agreement.
2.1 Section 1.01 of the Credit Agreement is hereby amended
by inserting the new following definitions in the
appropriate alphabetical order:
"Amendment No. 5" shall mean Amendment No. 5 dated as of
July 23, 1999 to this Agreement.
"Amendment No. 5 Effective Date " shall mean the effective
date of Amendment No. 5.
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"EBITDA" shall mean , for any period, the sum, for the
Company and its Subsidiaries (determined on a consolidated
basis without duplication in accordance with GAAP), of the
following for such period: (a) net income for such period
plus (b) to the extent deducted in computing such net
income, the sum of (i) income tax expense, plus (ii)
depreciation and amortization for such period (including
amortization of any goodwill or other intangibles), plus
(iii) Interest Expense for such period plus (iv) all other
non-cash, extraordinary charges minus (c) to the extent
added in computing such net income, the sum of (i) any gains
and losses attributable to any fixed asset sales plus (ii)
any non-cash, extraordinary gains.
"Interest Coverage Ratio" means, as at any date, the ratio
of (a) EBITDA for the period of four consecutive fiscal
quarters ending on or most recently ended prior to such date
to (b) Interest Expense for such period; provided that in
calculating the Interest Coverage Ratio at any date prior to
April 29, 2000, each component of the Interest Coverage
Ratio shall be determined only for the period commencing on
January 31, 1999 and ending on July 31, 1999, October 30,
1999 and January 29, 2000, as applicable.
2.2 The following definition in Section 1.01 of the Credit
Agreement is hereby amended and restated in its entirety:
"Leverage Ratio" shall mean, as at any date of
determination thereof, the ratio of (a) all Indebtedness of
the Company and its Subsidiaries (determined on a
consolidated basis, without duplication, in accordance with
GAAP) as at such date to (b) EBITDA for the period of four
fiscal quarters ending on or most recently ended prior to
such date; provided that for the purposes of determining the
Leverage Ratio for the fiscal quarters ending July 31, 1999
and October 30, 1999, EBITDA for the relevant period shall
be deemed to equal EBITDA for the period from the beginning
of the current fiscal year to the end of such fiscal quarter
multiplied by 2 and 4/3, respectively.
2.3 Section 1.01 of the Credit Agreement is hereby amended
by deleting in their entirety the following definitions:
"Debt to Capital Ratio", "Net Earnings", "Net Operating
Profit", "NOP/Interest Charges Ratio", "Senior Funded Debt",
"Tangible Net Worth" and "Total Liabilities".
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2.4 Section 2.05 of the Credit Agreement is hereby amended
and restated in its entirety to read as follows:
"2.05 Facility Fee. (a) The Company shall pay to the Agent
for the account of each Bank a facility fee on the daily
average (whether used or unused) amount of such Bank's
Commitment for the period from and including the Amendment
No. 5 Effective Date to but not including the earlier of the
date the Commitments are terminated or the Commitment
Termination Date, at a rate per annum in accordance with the
Pricing Schedule.
(b) Accrued facility fee shall be payable on each Quarterly
Date and on the earlier of the date the Commitments are
terminated or the Commitment Termination Date.
(c) Notwithstanding anything herein to the contrary, all
accrued and unpaid facility fee pursuant to Section 2.05 of
this Agreement (as in effect immediately prior to the
Amendment No. 5 Effective Date) shall be payable on the
Quarterly Date immediately following such date."
2.5 Section 2.11 of the Credit Agreement is hereby
deleted in its entirety.
2.6 Section 9.07 of the Credit Agreement is hereby
amended and restated in its entirety to read as follows:
"9.07 Leverage Ratio. The Company will not permit the
Leverage Ratio to exceed the following respective ratios at
any time during the following respective periods:
Period Ratio
------ -----
From July 31, 1999
through July 28, 2000 4.50:1.0
From July 29, 2000 through
February 2, 2001 4.25:1.0
From February 3, 2001 through
August 3, 2001 4.00:1.0
From August 4, 2001 through
February 1, 2002 3.75:1.0
From February 2, 2002 and 3.50:1.0"
thereafter
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2.7 Section 9.08 of the Credit Agreement shall be deleted
in its entirety and replaced with "[Intentionally Omitted]",
and each reference thereto in the Credit Agreement shall be
deleted.
2.8 Section 9.09 of the Credit Agreement shall be deleted
in its entirety and replaced with "[Intentionally Omitted]",
and each reference thereto in the Credit Agreement shall be
deleted.
2.9 Section 9.10 of the Credit Agreement is hereby amended
in its entirety to read as follows:
"9.10 Interest Coverage Ratio. The Company will not
permit the Interest Coverage Ratio to be less than the
following respective ratios as at the last day of any fiscal
quarter ending during the following respective periods:
Period Ratio
------ -----
From July 31, 1999
through February 2, 2001 3.50:1.0
From February 3, 2001 through
August 3, 2001 3.75:1.0
From August 4, 2001 through
February 1, 2002 4.00:1.0
From February 2, 2002 and 4.25:1.0
thereafter
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2.10 The Pricing Schedule is hereby amended in its entirety
to read as follows:
"PRICING SCHEDULE
Each of the "Applicable Margin for Eurodollar Loans,"
"Applicable Margin for Base Rate Loans" and "Facility Fee"
shall mean, for any day, the per annum rates set forth below
in the column under such term and in the row corresponding
to the "Leverage Ratio", based upon the Leverage Ratio as of
the most recent determination date; provided that for the
period from and after the Amendment No. 5 Effective Date
until the third Business Day after delivery of the Company's
unaudited consolidated financial statements for the fiscal
quarter ending July 31, 1999, the "Applicable Margin for
Eurodollar Loans," "Applicable Margin for Base Rate Loans"
and "Facility Fee" shall be the applicable rate per annum
set forth below in the row corresponding to the "Leverage
Ratio" in the range of > 3.50:1 < or = 4.00:1:
Leverage Ratio Applicable Applicable
Margin for Margin for
Eurodollar Loans Base Rate Loans Facility Fee
>4.00:1 1.50% 0.50% 0.50%
> 3.50:1 < or = 4.00:1 1.30% 0.30% 0.45%
> or = 3.00:1 < or = 3.50:1 1.125% 0.125% 0.375%
< 3.00:1 0.95% 0 0.30%
For purposes of the foregoing (but subject to the proviso
above), (a) the Leverage Ratio shall be determined as of the
end of each fiscal quarter of the Company's fiscal year
based upon the Company's consolidated financial statements
delivered pursuant to Section 9.01(a) or (b) hereof and
(b) each change in the "Applicable Margin for Eurodollar
Loans," "Applicable Margin for Base Rate Loans" and
"Facility Fee" resulting from a change in the Leverage Ratio
shall be effective during the period commencing on and
including the date three Business Days after delivery to the
Agent of such consolidated financial statements indicating
such change and ending on the date immediately preceding the
effective date of the next such change. Notwithstanding the
foregoing, for each day during any period that the Company's
senior unsecured long-term debt that is not guaranteed by
any other Person or subject to any credit enhancement shall
be rated Ba2 or lower by Xxxxx'x Investors Service, Inc. and
BB or lower by Standard & Poor's Ratings Services, the
"Applicable Margin for Eurodollar Loans" and "Applicable
Margin for Base Rate Loans" then in effect shall be
increased by 0.40% per annum and the "Facility Fee" then in
effect shall be increased by 0.10% per annum."
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3. Representations and Warranties.
In order to induce the Majority Banks and the Agent to
make this Amendment, the Company hereby represents that:
(a) the execution and delivery of this Amendment and
the performance of the Company thereunder and under the
Credit Agreement as amended hereby (i) have been duly
authorized by all necessary corporate action, will not
violate any provision of law, or the Company's charter or
by-laws, or result in the breach of or constitute a default,
or require a consent, under any indenture or other agreement
or instrument to which the Company or any of its
Subsidiaries is a party or by which the Company or any of
its Subsidiaries or their respective property may be bound
or affected, and (ii) each of this Amendment and the Credit
Agreement as amended hereby constitutes the legal, valid and
binding obligation of the Company, enforceable against the
Company in accordance with its terms;
(b) the representations and warranties in Section 8 of
the Credit Agreement are true and correct as of the
Amendment No. 5 Effective Date (as hereinafter defined) as
if they were being made on such date and as if reference
therein to the Credit Agreement (or words of similar import)
referred to the Credit Agreement as amended hereby and to
this Amendment; and
(c) no Event of Default or event which with notice or
lapse of time, or both, would constitute an Event of
Default, has occurred and is continuing on the Amendment No.
5 Effective Date.
4. Conditions of Effectiveness.
This Amendment shall be effective (as of the date
hereof) on the date when all of the following conditions
shall have been met, and such date shall be the "Amendment
No. 5 Effective Date":
(a) Counterparts of this Amendment shall have been
executed by the Company, the Majority Banks and the Agent;
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(b) The Agent shall have received a certificate dated
the Amendment No. 5 Effective Date specifying the names and
titles and including specimen signatures of the officers
authorized to sign this Amendment.
(c) The Agent shall have received such legal opinions,
documents and other instruments with respect to this
Amendment and the transactions contemplated hereby as it may
reasonably request.
(d) The Company shall have paid to the Agent for the
account of each Bank that has executed and delivered a
counterpart of this Amendment on or prior to 5:00 p.m. (New
York time) on July 23, 1999 (or has advised the Agent in a
manner satisfactory to the Agent that such Bank has executed
this Amendment on or prior to such time) an amendment fee
equal to 0.20% of the amount of such Bank's Commitment.
5. Miscellaneous.
(a) Except as specifically amended hereby, all the
provisions of the Credit Agreement shall remain unchanged
and in full force and effect, and the term "Credit
Agreement", and words of like import shall be deemed to
refer to the Credit Agreement as amended by this Amendment
unless otherwise provided herein or the context otherwise
requires. Nothing herein shall affect the obligations of
the Company under the Credit Agreement with respect to any
period prior to the Amendment No. 5 Effective Date.
(b) 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 by their duly authorized officers
as of the day and year first above written.
THE PEP BOYS - MANNY, MOE & XXXX
By /s/ Xxxxxxx X. Xxxxxx
------------------------------
Title:
7
THE PEP BOYS - MANNY, MOE & XXXX
OF CALIFORNIA,
as a Guarantor
By /s/ Xxxxxxx X. Xxxxxx
-------------------------------
Title:
PBY CORPORATION,
as a Guarantor
By /s/ Xxxxxxx X. Xxxxxx
-------------------------------
Title:
PEP BOYS - MANNY, MOE & XXXX
OF DELAWARE, INC.,
as a Guarantor
By /s/ Xxxxxxx X. Xxxxxx
-------------------------------
Title:
PEP BOYS - MANNY, MOE & XXXX
OF PUERTO RICO, INC.,
as a Guarantor
By /s/ Xxxxxxx X. Xxxxxx
-------------------------------
Title:
CARRUS SUPPLY CORPORATION,
as a Guarantor
By /s/ Xxxxxxx X. Xxxxxx
-------------------------------
Title:
8
BANKS
THE CHASE MANHATTAN BANK,
as Agent and a Bank
By /s/ Xxx Xxxxxxx
-------------------------------
Title: Vice President
BANK OF AMERICA NT&SA
By /s/ Xxxxxxx X. Xxxxxx
-------------------------------
Title: Senior Vice President
SUN TRUST BANKS INC.
By /s/ Xxxxx X. Xxxxxxxx
-------------------------------
Title: Assistant Vice President
FIRST UNION NATIONAL BANK
By /s/ Xxxxx Xxxxx Marks
-------------------------------
Title: Vice President
PNC BANK
By /s/ Xxxxxxx X. Xxxxxx
-------------------------------
Title: Assistant Vice President
FLEET BANK
By /s/ Xxxxxx X. Xxxxxxx
-------------------------------
Title: Vice President
0
XXXXX XXXX XX XXXXXXXXXX
By /s/ Xxxxxxx X. Xxxxxxx
--------------------------------
Title: Senior Vice President
CREDIT SUISSE FIRST BOSTON
By /s/ Xxx Xxxxx
-------------------------------
Title: Director
By /s/ Xxxxx X. Xxx
-------------------------------
Title: Assistant Vice President
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