EXHIBIT 10.57
CONSENT AND AMENDMENT
CONSENT AND AMENDMENT, dated as of August 25, 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, the Lenders and the Agent are parties to the
Agreement;
WHEREAS, the Borrower intends to acquire substantially all of the
assets of All Transmission Parts, Inc. and All Automatic Transmission Parts,
Inc. for approximately $40,000,000 (the "ALL TRANS ACQUISITION");
WHEREAS, the Borrower has requested that the Lenders approve the
amount of the Acquisition pursuant to subsection 8.10(j)(v) and agree to amend
certain provisions of 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 Company, the Lenders and the Agent hereby agree as
follows:
1. DEFINITIONS. All terms defined in the Agreement shall have such
defined meanings when used herein unless otherwise defined herein.
2. CONSENT TO ALL TRANS ACQUISITION. Pursuant to clause (v) of
Section 8.10(j), the Required Lenders hereby consent to the All Trans
Acquisition to the extent it would otherwise exceed the limitations thereof, so
long as the other requirements in respect thereof are satisfied, it being
understood that the aggregate consideration paid in connection with the All
Trans Acquisition shall be applied against and reduce the availability of the
$55,000,000 limit under subsection 8.10(j)(vi) (as such subsection is amended by
this Amendment).
3. AMENDMENT OF SUBSECTION 1.1. Subsection 1.1 of the
Agreement is hereby amended by adding the following new definitions in
alphabetical order:
"NEW LENDER": as defined in subsection 2.7(d).
"NEW LENDER SUPPLEMENT": as defined in subsection 2.7(d).
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4. AMENDMENT OF SECTION 2. The Agreement is hereby amended by
adding the following new subsection 2.7 to the end of Section 2:
"2.7 INCREASE IN REVOLVING CREDIT COMMITMENTS OR TERM LOANS (a) The
Borrower may, with notice to the Agent but without the consent of the
Required Lenders, (a) from time to time during the Revolving Credit
Commitment Period, request that the Revolving Credit Commitments be
increased, or (b) from time to time prior to the Termination Date, request
to borrow additional Term Loans; PROVIDED that the sum of incremental
Revolving Credit Commitments and additional Term Loans obtained pursuant to
this subsection shall not exceed $10,000,000 and shall, in each case,
aggregate at least $2,000,000 per requested increase; and PROVIDED FURTHER
that any request made by the Borrower pursuant to this subsection 2.7(a)
shall be accompanied by documentation complying with the provisions of
subsection 6.2(e) and additional written evidence to the extent necessary
to demonstrate that after giving effect to the additional Term Loans or the
Revolving Loans available to the Borrower pursuant to the increased
Revolving Credit Commitments, the Borrower would be in compliance with
subsection 8.17 hereof. Upon receipt of such notice, the Administrative
Agent will seek the agreement of one or more Lenders (including New
Lenders) to increase or, in the case of New Lenders, make, its or their
Revolving Credit Commitment or make additional Term Loans, as applicable,
in an aggregate amount equal to the amount so requested by the Borrower.
(b) If one or more of the Lenders (including New lenders) shall have
agreed to increase its or their existing Revolving Credit Commitment or, in
the case of New Lenders, agree to a Revolving Credit Commitment, or to make
a Term Loan, in each case pursuant to a request made as described in the
foregoing clause (a) (it being understood that no Lender shall have any
obligation to increase its Revolving Credit Commitment or make such
additional Term Loan), such increases in Revolving Credit Commitments shall
become effective, and such Term Loans shall be made available to the
Borrower, on a date mutually agreed upon among the Agent, the Borrower and
the Lenders providing such increase and/or such new Revolving Credit
Commitments or Term Loans and shall be implemented pursuant to
documentation consistent herewith and otherwise in form and substance
reasonably satisfactory to the Agent, providing, among other things, for
adjustments to cause the Loans of each Lender to correspond to their
respective percentage of the applicable facility after giving effect to
such increase (including, without limitation, by providing for prepaying
and reborrowing all then outstanding Loans).
(c) Revolving Credit Loans, Revolving Credit Commitments and Term
Loans made or agreed to pursuant to this subsection 2.7 shall have the same
maturities, interest and fee rates and other terms as the other Revolving
Credit Loans, Revolving Credit Commitments and/or Term Loans hereunder, as
applicable, and shall for all purposes be deemed to be Revolving Credit
Loans, Revolving Credit Commitments and/or Term Loans hereunder, as the
case may be.
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(d) Any bank, financial institution or other entity which, with the
consent of the Borrower and the Agent (which consent shall not be
unreasonably withheld), elects to become a "Lender" under this Agreement
pursuant to this subsection 2.7 shall execute a New Lender Supplement
(each, a "NEW LENDER SUPPLEMENT") substantially in the form of Exhibit H,
whereupon such bank, financial institution or other entity (a "NEW LENDER")
shall become a Revolving Credit Lender or Term Loan Lender, as the case may
be, for all purposes and to the same extent as if originally a party hereto
and shall be bound by and entitled to the benefits of this Agreement."
5. AMENDMENT OF SUBSECTION 4.3. Subsection 4.3 is hereby amended by
inserting the new clause (e) after existing clause (d):
"(e) If additional Term Loans are borrowed pursuant to subsection
2.7(c), the remaining scheduled installments in effect on the date such
additional Term Loans are borrowed shall be increased ratably (determined
on the basis of the respective amounts of such remaining installments)."
6. AMENDMENT OF SUBSECTION 8.1(a). Subsection 8.1(a) of the
Agreement is hereby amended by deleting the permitted maximum Leverage Ratios
listed therein for the last day of the Borrower's fiscal quarters ending
December 31, 1999 and March 31, 2000 and inserting in lieu thereof the following
permitted maximum Leverage Ratios:
"December 31, 1999 4.25 to 1.0
March 31, 2000 3.75 to 1.0".
7. AMENDMENT OF SUBSECTION 8.1(b). Subsection 8.1(b) of the
Agreement is hereby amended by deleting the minimum permitted interest coverage
ratio listed therein for the Borrower's four consecutive fiscal quarters ending
March 31, 2000 and inserting in lieu thereof the following interest coverage
ratio:
"March 31, 2000 2.25 to 1.0".
8. AMENDMENT OF SUBSECTION 8.7. Subsection 8.7 of the Agreement is
hereby amended by deleting the existing subsection 8.7 and inserting in lieu
thereof the following new subsection:
"8.7 LIMITATION ON LEASES. Permit Consolidated Lease Expense for any
fiscal year of the Borrower to exceed an amount equal to $11,000,000 for
the fiscal year ending December 31, 1998, $17,000,000 for the fiscal year
ending December 31, 1999 and $21,000,000 for each fiscal year thereafter."
9. AMENDMENT OF SUBSECTION 8.10(j). Subsection 8.10(j) of the
Agreement is hereby amended by deleting "$25,000,000" from clause (vi) and
inserting in lieu thereof "$55,000,000" such that subsection 8.10(j), as
amended, reads as follows:
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"(j) acquisitions by the Borrower and its Subsidiaries, of assets or
Capital Stock of one or more corporations or other Persons so long as (i)
each such acquisition and all transactions related thereto shall be
consummated in accordance with applicable Requirements of Law; (ii) each
such acquisition, in the case of an acquisition of Capital Stock, shall
result in such corporation or Person becoming a Subsidiary; (iii) after
giving effect to any such acquisition, no Default or Event of Default shall
have occurred and be continuing; (iv) the Borrower shall have delivered to
the Agent a certificate demonstrating that the requirements of subsection
8.1 would be satisfied on a pro forma basis as at the end of the most
recently ended fiscal quarter of the Borrower with respect to which
financial statements have been delivered pursuant to subsection 7.1 if each
such acquisition (including the Indebtedness incurred in connection
therewith) had occurred on the first day of the four fiscal quarter period
ended with such most recently ended fiscal quarter; (v) in the case of any
acquisition by the Borrower and its Subsidiaries, for cash or other
consideration exceeding $15,000,000 in the aggregate, such acquisition
shall be subject to the prior written consent of the Required Lenders; and
(vi) the aggregate consideration for all such acquisitions after the
Closing Date shall not exceed $55,000,000."
10. ADDITION OF EXHIBIT H. The Agreement is hereby amended by
inserting Exhibit H hereto after existing Exhibit G.
11. 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
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.
12. 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; and
(c) an amendment fee for the account of each Lender executing this
Amendment and delivering its executed signature page to the Agent prior to 12:00
Noon, New York City time, on August 25, 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.
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13. 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.
14. 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.
15. 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.
16. 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: /s/ Xxxxxx Xxxxxxxxxxxx
-------------------------------
Name: Xxxxxx Xxxxxxxxxxxx
Title: Vice President and Secretary
THE CHASE MANHATTAN BANK, as Agent and
as a Lender
By: /s/ Xxxxx X. Xxxx
-------------------------------
Name: Xxxxx X. Xxxx
Title: Vice President
BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION
By: /s/ Xxxxxxx X. Xxxxxxxx, Xx.
-------------------------------
Name: Xxxxxxx X. Xxxxxxxx, Xx.
Title: Vice President
THE BANK OF NOVA SCOTIA
By: /s/ F.C.H. Xxxxx
-------------------------------
Name: F.C.H. Xxxxx
Title: Senior Manager Loan Operations
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THE FIRST NATIONAL BANK OF CHICAGO
By: /s/ Xxxxx X. Xxxxxx
-------------------------------
Name: Xxxxx X. Xxxxxx
Title: First Vice President
FIRST UNION NATIONAL BANK
By: /s/ Xxxx Xxxxx
-------------------------------
Name: Xxxx Xxxxx
Title: Vice President
XXXXXX TRUST & SAVINGS
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
LASALLE NATIONAL BANK
By: /s/ Xxxxx X. Xxxx
-------------------------------
Name: Xxxxx X. Xxxx
Title: Vice President
NATIONAL CITY BANK
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Assistant Vice President
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BANK OF NEW YORK
By: /s/ R. Xxx Xxxxx
-------------------------------
Name: R. Xxx Xxxxx
Title: Senior Vice President
CREDIT AGRICOLE INDOSUEZ
By: /s/ Xxxxxx X. Xxxxx
-------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President - Senior
Relationship Manager
By: /s/ Xxxxx X. Xxxxxxxx
-------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President - Senior
Relationship Manager
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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: /s/ Xxxxxx Xxxxxxxxxxxx
-------------------------------
Name: Xxxxxx Xxxxxxxxxxxx
Title: Vice President and Secretary
AARON'S AUTOMOTIVE PRODUCTS, INC.
By: /s/ Xxxxxx Xxxxxxxxxxxx
-------------------------------
Name: Xxxxxx Xxxxxxxxxxxx
Title: Vice President and Secretary
ACI ELECTRONICS HOLDING CORP.
By: /s/ Xxxxxx Xxxxxxxxxxxx
-------------------------------
Name: Xxxxxx Xxxxxxxxxxxx
Title: Vice President and Secretary
ACI ELECTRONICS INVESTMENT CORP.
By: /s/ Xxxxxx Xxxxxxxxxxxx
-------------------------------
Name: Xxxxxx Xxxxxxxxxxxx
Title: Vice President and Secretary
ATC ELECTRONICS & LOGISTICS, L.P.
By: ACI ELECTRONICS HOLDING CORP., its
General Partner
By: /s/ Xxxxxx Xxxxxxxxxxxx
-------------------------------
Name: Xxxxxx Xxxxxxxxxxxx
Title: Vice President and Secretary
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ATC DISTRIBUTION GROUP, INC.
By: /s/ Xxxxxx Xxxxxxxxxxxx
-------------------------------
Name: Xxxxxx Xxxxxxxxxxxx
Title: Vice President and Secretary
ATS REMANUFACTURING, INC.
By: /s/ Xxxxxx Xxxxxxxxxxxx
-------------------------------
Name: Xxxxxx Xxxxxxxxxxxx
Title: Vice President and Secretary
COMPONENT REMANUFACTURING SPECIALISTS, INC.
By: /s/ Xxxxxx Xxxxxxxxxxxx
-------------------------------
Name: Xxxxxx Xxxxxxxxxxxx
Title: Vice President and Secretary
AUTOCRAFT REMANUFACTURING CORP.
By: /s/ Xxxxxx Xxxxxxxxxxxx
-------------------------------
Name: Xxxxxx Xxxxxxxxxxxx
Title: Vice President and Secretary
AUTOCRAFT INDUSTRIES, INC.
By: /s/ Xxxxxx Xxxxxxxxxxxx
-------------------------------
Name: Xxxxxx Xxxxxxxxxxxx
Title: Vice President and Secretary
EXHIBIT H
FORM OF NEW LENDER SUPPLEMENT
SUPPLEMENT, dated _________________, 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"). Capitalized terms used herein that are not defined
herein shall have the meanings ascribed to them in the Agreement.
W I T N E S S E T H :
WHEREAS, subsection 2.7(d) of the Agreement provides that any bank,
financial institution or other entity may become a party to the Agreement with
the consent of the Borrower and the Agent (which consent shall not be
unreasonably withheld) by executing and delivering to the Borrower and the Agent
a supplement to the Agreement in substantially the form of this Supplement; and
WHEREAS, the undersigned now desires to become a party to the
Agreement as a [Revolving Credit Lender] [Term Loan Lender];
NOW, THEREFORE, the undersigned hereby agrees as follows:
1. The undersigned agrees to be bound by the provisions of the
Agreement, and agrees that it shall, on the date this Supplement is
accepted by the Borrower and the Agent, become a [Revolving Credit Lender]
[Term Loan Lender] for all purposes of the Agreement to the same extent as
if originally a party thereto, with a [Revolving Credit Commitment] [Term
Loan] of $__________________.
2. The undersigned (a) represents and warrants that it is legally
authorized to enter into this Supplement; (b) confirms that it has received
a copy of the Agreement and all amendments thereto, together with copies of
the most recent available audited and unaudited financial statements
delivered pursuant thereto and such other documents and information as it
has deemed appropriate to make its own credit analysis and decision to
enter into this Supplement; (c) agrees that it will, independently and
without reliance the Agent or any other Lender and based on such documents
and information as it shall deem appropriate at the time, continue to make
its own credit decisions in taking or not taking action under the
Agreement, the other Loan Documents or any other instrument or document
furnished pursuant hereto or thereto; (d) appoints and authorizes the Agent
to take such action as agent on its behalf and to exercise such powers and
discretion under the Agreement, the other Loan Documents or any other
instrument or document furnished pursuant hereto or thereto as are
delegated to the Agent by the terms thereof, together with such powers as
are incidental thereto; and (e) agrees that it will be bound by the
provisions of the Agreement and will perform in accordance with its terms
all the obligations which by the terms of the Agreement are required to be
performed by it as a
Lender including, if it is organized under the laws of a jurisdiction
outside the United States, its obligation pursuant to subsection 4.13
(b) of the Agreement.
3. The undersigned's address for notices for the purposes of the
Agreement is as follows:
IN WITNESS WHEREOF, the undersigned has caused this Supplement to be
executed and delivered by a duly authorized officer on the date first above
written.
[INSERT NAME OF NEW LENDER]
By
-----------------------------------
Title:
Accepted this day of
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--------------, --------.
AFTERMARKET TECHNOLOGY CORP.
By
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Title:
Accepted this day of
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---------------, ------.
THE CHASE MANHATTAN BANK,
as Agent
By
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Title:
