FIRST AMENDMENT
FIRST AMENDMENT, dated as of May 23, 1995 (this "AMENDMENT"), to the
Credit Agreement, dated as of July 19, 1994 (as amended, supplemented or
otherwise modified from time to time, the "CREDIT 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 CHEMICAL 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 Company, the Lenders and the Agent are parties to the
Credit Agreement; and
WHEREAS, the Company has requested that the Lenders and the Agent
agree to amend certain provisions of the Credit 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 Company, the Lenders and the Agent hereby agree as
follows:
1. DEFINITIONS. All terms defined in the Credit
Agreement shall have such defined meanings when used herein unless otherwise
defined herein.
2. AMENDMENT OF SUBSECTION 1.1. (a) Subsection 1.1 of the Credit
Agreement is hereby amended by deleting therefrom the definition of "Senior
Subordinated Notes" and "Senior Subordinated Note Indenture" and inserting in
lieu thereof the following new definitions:
`"SENIOR SUBORDINATED NOTES": the collective reference to the 1994
Senior Subordinated Notes and the 1995 Senior Subordinated Notes.'
`"SENIOR SUBORDINATED NOTE INDENTURE": each of the respective
Indentures described in the definitions of "1994 Senior Subordinated Notes"
and "1995 Senior Subordinated Notes".'
(b) Subsection 1.1 of the Credit Agreement is hereby amended by
adding, in proper alphabetical order, the following new definitions:
`"ACQUISITION": each of the CRS Acquisition, the King-O-Matic
Acquisition and the Mascot Acquisition.'
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`"CRS ACQUISITION": the acquisition of Component Remanufacturing
Specialists, Inc. pursuant to the CRS Merger Agreement.'
`"CRS MERGER AGREEMENT": the Merger Agreement, dated as of May 10,
1995, among Component Remanufacturing Specialists, Inc., Xxxxx X. Xxxxx,
Xxxxxxx XxXxxx, CRS Holdings Corp., CRS Acquisition Corp. and Aftermarket
Technology Corp.'
`"KING-O-MATIC ACQUISITION": the acquisition by the Borrower or one
of its Subsidiaries of all of the capital stock or assets of King-O-Matic
Industries Limited.'
`"MASCOT ACQUISITION": the acquisition by the Borrower or one of its
Subsidiaries of all or substantially all of the capital stock or assets of
Mascot Truck Parts, Inc.'
`"1994 SENIOR SUBORDINATED NOTES": the senior subordinated notes due
2004, in aggregate principal amount at any time outstanding not exceeding
$120,000,000, issued by the Borrower pursuant to the Indenture dated as of
August 2, 1994.
`"1995 SENIOR SUBORDINATED NOTES": the senior subordinated notes due
2004, in aggregate principal amount at any time outstanding not exceeding
$40,000,000, issued by the Borrower pursuant to the Indenture dated as of
June 1, 1995, containing substantially the terms and conditions set forth
on Exhibit I and containing such other terms and conditions as are
reasonably satisfactory to the Agent and the Required Lenders.'
3. AMENDMENT OF SUBSECTION 8.1. Subsection 8.1 of the Credit
Agreement is hereby amended by (i) deleting the ratio "4.50 to 1.0" set forth
opposite June 30, 1995 in paragraph (a) thereof and inserting in lieu thereof
the following new ratio of "5.50 to 1.0" and (ii) deleting the ratio "4.50 to
1.0" set forth opposite September 30, 1995 in paragraph (a) thereof and
inserting in lieu thereof the following new ratio of "5.00 to 1.0".
4. AMENDMENT OF SUBSECTION 8.2. Subsection 8.2 of the Credit
Agreement is hereby amended by deleting paragraph (e) thereof in its entirety
and inserting in lieu thereof the following new paragraph (e):
"(e) (i) Indebtedness under the 1994 Senior Subordinated Notes
(including any 1994 Senior Subordinated Notes exchanged for other 1994
Senior Subordinated Notes) and (ii) Indebtedness under the 1995 Senior
Subordinated Notes (including any 1995 Senior Subordinated Notes exchanged
for other 1995 Senior Subordinated Notes); PROVIDED that, in the case of
the Indebtedness under 1995 Senior Subordinated incurred pursuant to clause
(ii) above, the requirements of subsection 8.1 would be satisfied on a pro
forma basis as at the end of the fiscal quarter of the Borrower most
recently ended prior to such incurrence with respect to which financial
statements have been delivered
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pursuant to subsection 7.1 if such incurrence and any Acquisition
consummated concurrently with such incurrence had occurred on or prior to
the first day of the four fiscal quarter period ended with such most
recently ended fiscal quarter; and PROVIDED that, in the case of both
clause (i) and (ii) above, the Borrower shall not, directly or indirectly,
without the consent of the Required Lenders, permit the modification,
waiver or amendment of any of the terms (including, without limitation, the
subordination provisions) of the Senior Subordinated Notes (other than any
such amendment, modification or change which (i) would extend the maturity
or mandatory redemption date thereof or reduce the amount of any principal
or redemption payments in respect thereof, (ii) would reduce the rate or
extend the date for payment of interest or (iii) would not adversely affect
the interests of the Agent or any Lender under any Loan Document, or (iv)
is of a technical or clarifying nature and can be made without the consent
of any holder of such Senior Subordinated Notes);"
5. AMENDMENT OF SUBSECTION 8.10. Subsection 8.10 of the Credit
Agreement is hereby amended by removing the word "and" at the end of paragraph
(h), removing the period at the end of paragraph (i) and adding thereafter the
following:
"; and
(j) upon and after the issuance of the 1995 Senior Subordinated Notes
in an aggregate principal amount of not less than $40,000,000, investments
by the Borrower or one or more of its Subsidiaries which constitute any or
all of the CRS Acquisition, the King-O-Matic Acquisition and the Mascot
Acquisition by the Borrower or its Subsidiaries, for cash or other
consideration not exceeding $40,000,000 in the aggregate for all such
acquisitions; PROVIDED that (i) the requirements of subsection 8.1 would be
satisfied on a pro forma basis as at the end of the fiscal quarter of the
Borrower most recently ended prior to such acquisition with respect to
which financial statements have been delivered pursuant to subsection 7.1
if each such acquisition and the issuance of the 1995 Senior Subordinated
Notes had occurred on or prior to the first day of the four fiscal quarter
period ended with such most recently ended fiscal quarter and (ii)
immediately after the consummation of each such acquisition, there shall be
at least $10,000,000 available hereunder for extensions of credit to be
made in accordance with the terms hereof (including the restrictions of the
Borrowing Base after giving effect to such acquisition)."
6. AMENDMENT OF SCHEDULE 5.14. Upon each of the Acquisitions,
Schedule 5.14 of the Credit Agreement will be amended by notice to the Agent to
include the new Subsidiary formed or acquired thereby.
7. AMENDMENT OF ANNEX A. Annex A of the Credit Agreement is hereby
amended by adding to the end of clause (iii) of the definition of Ineligible
Accounts Receivable therein the following:
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"and other than foreign sales giving rise to Accounts that are payable
by Canadian account debtors which such Accounts constitute Collateral under
(and as defined in) a Security Agreement PROVIDED that foreign sales
payable by Canadian account debtors do not at any time constitute more than
10% of total Eligible Accounts Receivable"
8. AMENDMENT OF EXHIBIT I. Exhibit I of the Credit Agreement is
hereby amended by deleting such Exhibit I in its entirety and inserting in lieu
thereof the new Exhibit I attached hereto as Exhibit I.
9. REPRESENTATIONS; NO DEFAULT. On and as of the date hereof, and
after giving effect to this Amendment, the Company confirms, reaffirms and
restates that the representations and warranties set forth in Section 5 of the
Credit Agreement and in the other Loan Documents are true and correct in all
material respects, PROVIDED that the references to the Credit Agreement therein
shall be deemed to be references to this Amendment and to the Credit Agreement
as amended by this Amendment.
10. CONDITIONS TO EFFECTIVENESS. This Amendment shall become
effective on and as of the date (the "AMENDMENT EFFECTIVE DATE") that the Agent
shall have received 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.
11. CONDITIONS TO ACQUISITIONS. The parties hereto affirm and agree
that pursuant to subsection 8.16(b) of the Credit Agreement, the Borrower shall
cause each new Subsidiary created or acquired in connection with the CRS
Acquisition, the King-O-Matic Acquisition and the Mascot Acquisition to enter
into a Security Agreement and a Guarantee concurrently with the consummation of
such acquisition. In connection with each such acquisition and the delivery of
Security Agreements and Guarantees, the Borrower agrees to deliver or cause to
be delivered (i) such legal opinions of special local counsel as the Agent shall
reasonably require, (ii) filings, recordings and registrations, including,
without limitation, duly executed financing statements on form UCC-1, necessary
or, in the opinion of the Agent, desirable to perfect the liens created by such
additional Security Agreements, in each case in proper form for filing, (iii)
copies of the results of recent lien searches in the jurisdictions applicable
thereto with respect to personal property of each such new Subsidiary, the
results of which such searches shall be satisfactory to the Agent and (iv) such
merger agreements, stock purchase agreements or other documentation pursuant to
which such acquisitions are to be consummated as the Agent shall reasonably
request.
12. LIMITED AMENDMENT. Except as expressly waived and amended
herein, the Credit 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
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of, any other term or condition of the Credit 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 Credit Agreement
or any of the instruments or agreements referred to therein, as the same may be
amended from time to time.
13. COSTS AND EXPENSES. The Company 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.
14. 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.
15. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
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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:
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Title:
CHEMICAL BANK, as Agent and as a Lender
By:
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Title:
XXXXXX FINANCIAL, INC.
By:
-------------------------
Title:
THE CIT GROUP/BUSINESS CREDIT,
INC.
By:
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Title:
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CONSENT
Each of the undersigned Parent and Subsidiary 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 HOLDINGS CORP.
By:
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Title:
RPM MERIT, INC.
By:
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Title:
AARON'S AUTOMOTIVE PRODUCTS, INC.
By:
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Title:
MAMCO CONVERTERS, INC.
By:
-------------------------
Title:
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H.T.P., INC.
By:
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Title:
HTP CHARLOTTE INC.
By:
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Title:
HTP MICHIGAN, INC.
By:
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Title:
