SECOND AMENDMENT AND FOREBEARANCE AGREEMENT
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SECOND AMENDMENT AND FORBEARANCE AGREEMENT, dated as of
June 19, 1997 (this "Amendment"), to the Loan Agreement referred to below by
and among AID AUTO STORES, INC., a Delaware corporation ("Borrower"), the
SUBSIDIARY GUARANTORS LISTED ON THE SIGNATURE PAGES HEREOF and GENERAL ELECTRIC
CAPITAL CORPORATION, a New York corporation ("Lender").
W I T N E S S E T H
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WHEREAS, Borrower, Subsidiary Guarantors and Lender are parties to
that certain Loan and Security Agreement, dated as of October 1, 1996 (as
amended, supplemented or otherwise modified from time to time, the ("Loan
Agreement"); and
WHEREAS, Borrower and Lender have agreed to amend the Loan Agreement
in the manner, and on the terms and conditions provided for herein;
NOW THEREFORE, in consideration of the premises and for other good
and valuable consideration, the receipt, adequacy and sufficiency of which are
hereby acknowledged, the parties hereby agree as follows:
1. Definitions. Capitalized terms not otherwise defined herein
shall have the meanings ascribed to them in the Loan Agreement.
2. Amendment to the Loan Agreement. The Loan Agreement is hereby
amended as of the Amendment Effective Date as follows:
(a) Recital A of the Loan Agreement is hereby amended to change
the reference to "3.0%" under the caption "Revolving Credit Rate" to read
"3.0% and, if Borrower has not received an Acceptable Refinance Commitment
Letter on or Prior to July 15, 1997, at any time after July 15, 1997, 5.0%."
(b) Section 1.2 (b) of the Loan Agreement is hereby amended to
add a new sentence at the end thereof to read as follows: "Notwithstanding
the foregoing, in the event that on or prior to September 30, 1997,
pursuant to this Section 1.2 (b), Borrower voluntarily terminates
Borrower's right to receive and Lender's obligation to make Revolving
Credit Advances and prepays all of the Obligations, the Prepayment Fee
shall be limited to $175,000."
(c) Section 1.5 (a) of the Loan Agreement is hereby amended to
change the reference to "three percent (3.0%)" to read "three percent
(3.0%)and, if Borrower has not received an Acceptable Refinance Commitment
Letter on or prior to July 15, 1997, at any time after July 15, 1997, five
percent (5.0%)."
(d) Article 3 of the Loan Agreement is amended to add a new
Section 3.29 at the end thereof to read as follows:
"3.29 Consultant. If Borrower has not received an Acceptable
Refinance Commitment Letter on or prior to July 15, 1997, no later than
July 18, 1997 Borrower at Borrower's cost and expense shall engage until
the Termination Date a turnaround management consultant to advise the
Borrower on day-to-day operations, cash flow management, systems
implementation and capital structure, which consultant shall be reasonable
acceptable Lender."
(e) Schedule A of the Loan Agreement is hereby amended to add in
the appropriate alphabetical order a new definition thereto to read as
follows:
"Acceptable Refinance Commitment Letter" shall mean a written
commitment letter, an executed copy of which has been delivered to Lender
by Borrower, in form and substance acceptable to Lender issued by a
financial inistitution acceptable to Lender and accepted by Borrower
pursuant to which such financial institution has issued its commitment
(which commitment may be subject to additional reasonable due
diligence) to the Borrower to provide to Borrower a credit facility in
an amount sufficient to refinance all of the Obligations on or prior to
September 30, 1997. In the event any such commitment letter is not
acceptable to Lender, Lender shall promptly advise Borrower of the
specific reasons it is not acceptable.
3. Forbearance. Lender hereby agrees as of the Amendment Effective
Date to forbear until August 31, 1997 (which date shall be extended to
September 30, 1997 if prior to August 31, 1997 Borrower shall have given
Lender written notice of such extension and paid to Lender a non-refundable
extension fee of $5,000) (the "Forbearance Period") from exercising any rights
or remedies under Section 8.2 of the Loan Agreement arising solely out of the
Event of Default under Section 8.1 (d) of the Loan Agreement relating to various
Notices of Revolving Credit Advance delivered by Borrower to Lender during the
months of March and April, 1997. Borrower and each Credit Party executing this
Agreement acknowledges and agrees that (i) the Event of Default specified in
the preceding sentence has occurred and is continuing and (ii) upon expiration
of the Forbearance Period the forbearance provided under this Section 3 shall
terminate and Lender shall have the right to exercise any and all rights and
remedies under Section 8.2 of the Loan Agreement arising out of such Event of
Default.
4. Representations and Warranties. To induce Lender to enter into
this Amendment, Borrower and any other Credit Party executing this amendment
hereby represents and warrants that:
(a) The execution, delivery and performance by each Credit Party of
this Amendment are within such Credit Party's corporate power and have
been duly authorized by all necessary corporate shareholder action.
(b) This Amendment has been duly executed and delivered by or on
behalf of each Credit party.
(c) This Amendment constitutes a legal, valid and binding obligation
of each Credit Party enforceable against such Credit Party in accordance
with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting creditors' rights generally and by general equitable principles
(whether enforcement is sought by proceedings in equity or at law).
(d) Other than as described in Section 3 above, no Default has
occurred and is continuing.
5. No Other Amendments; No Waivers. Except as expressly amended
in Section 2 hereof, the Loan Agreement shall be unmodified and shall continue
to be in full force and effect in accordance with its terms. In addition, except
for the forbearance expressly provided in Section 3 hereof, this Amendment shall
not be deemed a waiver of any term or condition of any Loan Document or a
forbearance by Lender with respect to any right or remedy which Lender may
now or in the future have under the Loan Documents, at law or in equity or
otherwise or be deemed to prejudice any rights or remedies which Lender may
now have or may have in the future under or in connection with Loan Document
or under or in connection with any Default under the Loan Documents.
6. Outstanding Indebtedness; Waiver of Claims. Borrower hereby
acknowledges and agrees that as of June 17, 1997 the aggregate outstanding
principal amount of the Revolving Credit Loan is $8,121,166.79 and that such
principal amount is payable pursuant to the Loan Agreement, as amended hereby,
without defense, offset, withholding, counterclaim or deduction of any kind.
Borrower and each other Credit Party executing this Amendment hereby waives,
releases, remises and forever discharges Lender and each other Indemnified
Person from any and all Claims of any kind or character, known, or unknown,
which Borrower or any other Credit Party ever had, now has or might hereafter
have against Lender which relates, directly or indirectly, to any acts or
omissions of Lender or any other Indemnified Person on or prior to the Amendment
Effective Date.
7. Expenses. Borrower hereby reconfirms its obligations pursuant
to Section 10.2 of the Loan Agreement to pay and reimburse Lender for all
reasonable costs and expenses (including, without limitation, reasonable fees
of counsel) incurred in connection with the negotiation, preparation, execution
and delivery of this amendment and all other documents and instruments delivered
in connection herewith.
8. Effectiveness. This Amendment shall become effective as of
June 19, 1997 (the "Amendment Effective Date") only upon satisfaction in full
in the judgment of the Lender of each of the following conditions on or prior
to June 20, 1997:
(a) Documents. Lender shall have received two original copies of
this Amendment duly executed and delivered by Lender, Borrower and the
other Credit parties listed on the signature pages hereof.
(b) Guarantee. Lender shall have received two original copies of an
unconditional guarantee of payment of the Obligations in the form of
Exhibit A attached hereto duly executed and delivered by Xxxxxx X. Xxxxxxx.
(c) Payment of Amendment Fee. Borrower shall have paid to Lender a
non-refundable amendment fee of $25,000.
(d) Board Resolutions. A certificate of the Secretary of Borrower
certifying the resolutions adopted by the Board of Directors of Borrower
approving this Amendment. Borrower shall provide to Lender no later than
June 27, 1997 certificate of the Secretary of Borrower certifying the
resolutions adopted by the Board of Directors of each Credit Party (other
than Borrower) executing this Amendment approving this Amendment and
failure to comply with the foregoing shall constitute an Event of Default.
(e) Representations and Warranties. All representations and warranties
of or on behalf of the Credit Parties in this amendment and all their other
Loan Documents shall be true and correct in all respects with the same
effect as though such representations and warranties had been made on
and as of the date hereof and on and as of the date that the other
conditions precedent in this Section 8 have been satisfied, except to the
extent that any such representation or warranty expressly relates to an
earlier date or except as expressly identified in Section 3 hereof.
In the event that each of the foregoing conditions precedent has not
been satisfied on or prior to June 20, 1997, this Amendment shall become, upon
written notice by Lender to Borrower, null and void and of no force or effect.
9. GOVERNING LAW. THIS AMENDEMENT SHALL BE GOVERNED BY, AND
INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
10. Counterparts. This Amendment may be executed by the parties
hereto on any number of separate counterparts and all of said counterparts
taken together shall be deemed to constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered as of the day and year first above written.
BORROWER:
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AID AUTO STORES, INC.
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: President
LENDER:
GENERAL ELECTRIC CAPITAL
CORPORATION
By: /s/Xxxxxx Xxxxxxxx
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Name: Xxxxxx Xxxxxxxx
Title: Duly Authorized Signatory
SUBSIDIARY GUARANTORS:
XXXX AUTOMOTIVE WAREHOUSE
INC.
By: /s/Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: President
PERFECT CHOICE AUTOMOTIVE
PRODUCTS, INC.
By: /s/Xxxx X. Xxxxxxx
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Name: Xxxx X. Xxxxxxx
Title: President
AID FLATLANDS AVENUE,INC.
By: /s/Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: President
WHITE PLAINS AID, INC.
By: /s/Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: President
BELLMORE AID, INC.
By: /s/Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: President
BETHPAGE SUPERSTORE AID
AUTO, INC.
By: /s/Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: President
NORTH BABYLON SUPERSTORE
AID AUTO, INC.
By: /s/Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: President
OCEANSIDE SUPERSTORE AID
AUTO, INC.
By: /s/Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: President
JERSEY CITY AID AUTO, INC.
By: /s/Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: President
HILLSIDE AVENUE AID, INC.
By: /s/Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: President
XXXX COVE SUPERSTORE AID
AUTO, INC.
By: /s/Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: President
AID 1715 FLATBUSH, INC.
By: /s/Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: President
CAMBRIA HEIGHTS AID, INC.
By: /s/Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: President
