EXHIBIT 10.43
AMENDMENT AND RESTATEMENT AGREEMENT
dated as of March 6, 2003, among ADVANCE STORES COMPANY,
INCORPORATED, a Virginia corporation (the "Borrower"),
ADVANCE AUTO PARTS, INC., a Delaware corporation
("Holdings"), the Lenders party hereto and JPMORGAN
CHASE BANK, as Administrative Agent, and SUNTRUST BANK
and WACHOVIA BANK, NATIONAL ASSOCIATION, as
Documentations Agents, under the Amended and Restated
Credit Agreement dated as of June 28, 2002, among the
Borrower, Holdings, the lenders referred to therein and
the Administrative Agent, as in effect on the date
hereof (the "Existing Credit Agreement").
WHEREAS, Holdings and the Borrower have requested, and the
Required Restatement Lenders and the Administrative Agent have agreed, upon the
terms and subject to the conditions set forth herein, that the Existing Credit
Agreement be amended and restated as provided herein to, among other things,
provide for (a) the Tranche A-1 Lenders to extend credit in the form of Tranche
A-1 Term Loans on the Redemption Date in an aggregate principal amount equal to
$75,000,000 and (b) the Tranche C-1 Lenders to extend credit in the form of
Tranche C-1 Term Loans on the Redemption Date in an aggregate principal amount
equal to $275,000,000.
NOW, THEREFORE, Holdings, the Borrower, the Required
Restatement Lenders and the Administrative Agent hereby agree as follows:
SECTION 1. Defined Terms. Capitalized terms used but not
defined herein shall have the meanings assigned to such terms in the Restated
Credit Agreement referred to below. As used in this Agreement, "Required
Restatement Lenders" means, at any time, (a) the Required Lenders under (and as
defined in) the Existing Credit Agreement, and (b) each of the Tranche A-1
Lenders and Tranche C-1 Lenders set forth on Schedule 2.01 to the Restated
Credit Agreement.
SECTION 2. Restatement Effective Date. (a) The amendment and
restatement of the Existing Credit Agreement provided for in Section 3 hereof
shall be consummated at a closing to be held on the Restatement Effective Date
at the
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offices of Cravath, Swaine & Xxxxx, or at such other time and place as the
parties hereto shall agree upon.
(b) The "Restatement Effective Date" shall be specified by the
Borrower, and shall be a date not later than March 6, 2003, as of which all the
conditions set forth or referred to in Section 4 hereof shall have been
satisfied. The Borrower shall give not less than one Business Day's written
notice proposing a date as the Restatement Effective Date to the Administrative
Agent, which shall send copies of such notice to the Lenders. This Agreement
shall terminate at 5:00 p.m., New York City time, on March 6, 2003, if the
Restatement Effective Date shall not have occurred at or prior to such time.
SECTION 3. Amendment and Restatement of the Existing Credit
Agreement; Loans and Letters of Credit. (a) Effective on the Restatement
Effective Date, the Existing Credit Agreement is hereby amended and restated to
read in its entirety as set forth in Exhibit A hereto (the "Restated Credit
Agreement"), and the Administrative Agent is hereby directed by the Required
Restatement Lenders to enter into such Loan Documents and to take such other
actions as may be required to give effect to the transactions contemplated
hereby. From and after the effectiveness of such amendment and restatement, the
terms "Agreement", "this Agreement", "herein", "hereinafter", "hereto", "hereof"
and words of similar import, as used in the Restated Credit Agreement, shall,
unless the context otherwise requires, refer to the Existing Credit Agreement as
amended and restated in the form of the Restated Credit Agreement, and the term
"Credit Agreement", as used in the other Loan Documents, shall mean the Restated
Credit Agreement.
(b) All Tranche A Term Loans, Tranche C Term Loans, Revolving
Loans, Swingline Loans and Letters of Credit outstanding under the Existing
Credit Agreement on the Restatement Effective Date shall continue to be
outstanding under the Restated Credit Agreement and the terms of the Restated
Credit Agreement will govern the rights of the Lenders and the Issuing Bank with
respect thereto.
SECTION 4. Conditions. The amendment and restatement of the
Existing Credit Agreement as contemplated by Section 3 of this Agreement shall
be subject to the satisfaction of the following conditions precedent:
(a) The Administrative Agent (or its counsel) shall have
received from Holdings, the Borrower and the
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Required Restatement Lenders either (i) a counterpart of this Agreement
signed on behalf of such party or (ii) written evidence satisfactory to
the Administrative Agent (which may include telecopy transmission of a
signed signature page of this Agreement) that such party has signed a
counterpart of this Agreement.
(b) The Administrative Agent shall have received a favorable
written opinion (addressed to the Administrative Agent and the Lenders
and dated the Restatement Effective Date) of each of (i) Xxxxxxx &
XxXxxxxx, counsel for the Loan Parties, substantially in the form of
Exhibit B-1, (ii) Flippin Xxxxxxxx Xxxxx Xxxxxxxxxx & Xxxxxx, Virginia
counsel for the Loan Parties, substantially in the form of Exhibit B-2,
and (iii) Xxxxxxx XxXxxxxxx LLP, special New York counsel for the Loan
Parties, substantially in the form of Exhibit B-3, and, in the case of
each such opinion required by this paragraph, covering such other
matters relating to the Loan Parties, the Loan Documents or the
Restatement Transactions as the Required Restatement Lenders shall
reasonably request. Holdings and the Borrower hereby request such
counsel to deliver such opinions.
(c) The Administrative Agent shall have received such
documents and certificates as the Administrative Agent or its counsel
may reasonably request relating to the organization, existence and good
standing of each Loan Party, the authorization of the Restatement
Transactions and any other legal matters relating to the Loan Parties,
the Loan Documents or the Restatement Transactions, all in form and
substance satisfactory to the Administrative Agent and its counsel.
(d) The Administrative Agent shall have received a
certificate, dated the Restatement Effective Date and signed by the
President, a Vice President or a Financial Officer of each of Holdings
and the Borrower, confirming compliance with the conditions set forth
in paragraphs (a) and (b) of Section 4.02 of the Restated Credit
Agreement.
(e) The Administrative Agent shall have received all fees and
other amounts due and payable on or prior to the Restatement Effective
Date, including, to the extent invoiced, reimbursement or payment of
all out-of-pocket expenses (including fees, charges and disbursements
of counsel) required to be reimbursed or
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paid by any Loan Party hereunder or under any other Loan Document.
(f) The Collateral Agent shall have received (i) all documents
and instruments, including Uniform Commercial Code financing
statements, required by law or reasonably requested by the Collateral
Agent to be filed, registered or recorded to create or perfect the
Liens intended to be created under the Security Agreement after giving
effect to the Restatement Transactions, (ii) a completed Perfection
Certificate dated the Restatement Effective Date and signed by an
executive officer or Financial Officer of the Borrower and (iii) all
documents and instruments necessary to create or perfect the Liens
intended to be created under the Pledge Agreement after giving effect
to the Restatement Transactions.
(g) The Collateral Agent shall have received (i) to the extent
requested by the Collateral Agent, amendments to each Mortgage executed
in connection with the Existing Credit Agreement providing that the
Tranche A-1 Term Loans and Tranche C-1 Term Loans (in addition to the
other Obligations) shall be secured by a Lien on each Mortgaged
Property, signed on behalf of the record owner of such Mortgaged
Property and (ii) a policy or policies of title insurance or a title
endorsement to an existing title insurance policy, issued by a
nationally recognized title insurance company, insuring the Lien of
each such Mortgage as a valid first Lien on the Mortgaged Property
described therein, free of any other Liens except as permitted by the
Restated Credit Agreement, together with such endorsements, coinsurance
and reinsurance as the Collateral Agent or the Required Restatement
Lenders may reasonably request.
(h) The Administrative Agent shall have received evidence that
the insurance required by Section 5.07 of the Restated Credit Agreement
and the Security Documents is in effect.
(i) A Reaffirmation Agreement substantially in the form of
Exhibit C hereto shall have been delivered by each party thereto.
The Administrative Agent shall notify the Borrower and the Lenders of the
Restatement Effective Date, and such notice shall be conclusive and binding.
Notwithstanding the foregoing, the amendment and restatement of the Existing
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Credit Agreement as contemplated by Section 3 of this Agreement, the obligations
of the Trance A-1 Lenders to make Tranche A-1 Term Loans and the obligations of
the Tranche C- 1 Lenders to make Tranche C-1 Term Loans shall not become
effective unless each of the foregoing conditions is satisfied (or waived
pursuant to Section 5 below) at or prior to 5:00 p.m., New York City time, on
March 6, 2003 (and, in the event such conditions are not so satisfied or waived,
this Agreement shall terminate at such time).
SECTION 5. Effectiveness; Counterparts; Amendments; Fees. (a)
This Agreement shall become effective when copies hereof which, when taken
together, bearing the signatures of Holdings, the Borrower, the Administrative
Agent and the Required Restatement Lenders shall have been received by the
Administrative Agent. This Agreement may not be amended nor may any provision
hereof be waived except pursuant to a writing signed by Holdings, the Borrower,
the Administrative Agent and the Required Restatement Lenders. This Agreement
may be executed in two or more counterparts, each of which shall constitute an
original but all of which when taken together shall constitute a single
contract. Delivery of an executed counterpart of a signature page of this
Agreement by telecopy shall be effective as delivery of a manually executed
counterpart of this Agreement.
(b) In consideration of the agreements of the Required Lenders
contained in this Agreement, the Borrower agrees to pay to the Administrative
Agent, for the account of each Lender under the Existing Credit Agreement that
delivers an executed counterpart of this Agreement at or prior to 5:00 p.m. on
March 6, 2003, a fee equal to 0.125% of the sum of such Lender's Revolving
Commitment and outstanding Term Loans under the Existing Credit Agreement, in
each case as of the date immediately prior to the Restatement Effective Date;
provided that such fee shall not be payable unless and until the Restatement
Effective Date occurs.
SECTION 6. No Novation. This Agreement shall not extinguish
the Loans outstanding under the Existing Credit Agreement. Nothing herein
contained shall be construed as a substitution or novation of the Loans
outstanding under the Existing Credit Agreement, which shall remain outstanding
after the Restatement Effective Date as modified hereby. Notwithstanding any
provision of this Agreement, the provisions of Sections 2.15, 2.16, 2.17 and
9.03 of the Existing Credit Agreement as in effect immediately prior to the
Restatement Effective Date will continue to be effective as to all matters
arising out of or in any way related to
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facts or events existing or occurring prior to the Restatement Effective Date.
SECTION 7. Notices. All notices hereunder shall be given in
accordance with the provisions of Section 9.01 of the Restated Credit Agreement.
SECTION 8. Applicable Law; Waiver of Jury Trial. (A) THIS
AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE
STATE OF NEW YORK.
(B) EACH PARTY HERETO HEREBY AGREES TO THE PROVISIONS AS SET
FORTH IN SECTION 9.10 OF THE RESTATED CREDIT AGREEMENT AS IF SUCH SECTION WERE
SET FORTH IN FULL HEREIN.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective authorized officers as of the
day and year first written above.
ADVANCE AUTO PARTS, INC.,
By /s/ XXXXXXX X. XXXX
--------------------------
Name: Xxxxxxx X. Xxxx
Title: SVP and Controller
ADVANCE STORES COMPANY,
INCORPORATED,
By /s/ XXXXXXX X. XXXX
--------------------------
Name: Xxxxxxx X. Xxxx
Title: SVP and Controller
JPMORGAN CHASE BANK,
individually and as
Administrative Agent,
By /s/ XXXX X. XXXXXX
--------------------------
Name: Xxxx X. Xxxxxx
Title: Managing Director
SUNTRUST BANK,
individually and as
Documentation Agent
By /s/ XXXXXX X. XXXXXXXXX
--------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Sr. Vice President
WACHOVIA BANK, NATIONAL
ASSOCIATION,
individually and as
Documentation Agent
By /s/ XXXXX X. XXXXXX
--------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
SIGNATURE PAGE TO THE AMENDMENT
AND RESTATEMENT AGREEMENT, DATED
AS OF March 6, 2003, IN RESPECT
OF THE AMENDED AND RESTATED
CREDIT AGREEMENT, DATED June 28,
2002, AMONG ADVANCE STORES
COMPANY, INCORPORATED, ADVANCE
AUTO PARTS, INC., THE LENDERS
PARTY THERETO, JPMORGAN CHASE
BANK, AS ADMINISTRATIVE AGENT,
AND SUNTRUST BANK AND WACHOVIA
BANK, NATIONAL ASSOCIATION, AS
DOCUMENTATION AGENTS.
Name of Institution:
--------------------------------
By *
-----------------------------
Name:
Title:
* Numerous Lenders signatories hereto.
EXHIBITS
Exhibit A -- Amended and Restated Credit Agreement
Exhibit B-1 -- Form of Opinion of Xxxxxxx & XxXxxxxx, counsel for the Loan
Parties
Exhibit B-2 -- Form of Opinion of Flippin Xxxxxxxx Xxxxx Xxxxxxxxxx & Xxxxxx,
Virginia counsel for the Loan Parties
Exhibit B-3 -- Form of Opinion of Xxxxxxx XxXxxxxxx LLP, special New York
counsel for the Loan Parties
Exhibit C -- Form of Reaffirmation Agreement
