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EXHIBIT 10.1.25
EXECUTION COPY
FIFTH AMENDMENT AND WAIVER, dated as of October 24, 1997 (this
"Amendment and Waiver"), to the Amended and Restated Credit Agreement dated as
of January 25, 1996 (as amended pursuant to the First Amendment thereto, dated
as of April 23, 1996, the Second Amendment, dated as of August 28, 1996, the
Third Amendment, dated as of January 25, 1997, and the Fourth Amendment, dated
as of July 15, 1997, and as further amended, supplemented, waived or otherwise
modified from time to time, (the "Credit Agreement") among A.P.S., INC., a
Delaware corporation (the "Borrower"), the several banks and other financial
institutions from time to time parties thereto (collectively, the "Lenders";
individually a "Lender") and THE CHASE MANHATTAN BANK (formerly known as
Chemical Bank), a New York banking corporation, as agent for the Lenders (in
such capacity, the "Agent").
W I T N E S S E T H :
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WHEREAS, the Borrower, the Lenders and the Agent are parties to the
Credit Agreement;
WHEREAS, the Borrower has requested that the Lenders amend and waive
certain provisions of the Credit Agreement in the manner provided for herein;
and
WHEREAS, the Agent and the Lenders are willing to agree to the
requested amendment and waiver, but only upon the terms and conditions set
forth herein;
NOW THEREFORE, in consideration of the premises contained herein, the
parties hereto agree as follows:
1. Defined Terms. Unless otherwise defined herein, terms which are
defined in the Credit Agreement and used herein are so used as so defined.
2. Waiver of Event of Default Under Subsection 8.1 of the Credit
Agreement. The Lenders hereby waive, until December 31, 1997 (the "Waiver
Period"), any Default or Event of Default arising out of the failure of the
Borrower to comply with the requirements of subsection 8.1 of the Credit
Agreement at the last day of the fiscal quarter ending October 25, 1997,
provided that the waiver in this Section shall cease to be effective if EBITDA
of Holding and its consolidated Subsidiaries for the third fiscal quarter
ending October 25, 1997, shall be less than $2,500,000.
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3. Additional Limitation on Borrowings. (a) The Borrower hereby
agrees that, notwithstanding anything to the contrary in the Credit Agreement,
the Borrower shall not have the right to, and shall not, request a borrowing of
Revolving Credit Loans or Swing Line Loans, or the issuance of a Letter of
Credit if, after giving effect to such borrowing or issuance, the Aggregate
Outstanding Revolving Credit of all the Revolving Credit Lenders would exceed
$204,750,000 at any time prior to December 31, 1997.
(b) Notwithstanding anything to the contrary in subsection 2.1(b), 2.6
or 4.2 of the Credit Agreement, during the Waiver Period, (i) all outstanding
Eurodollar Loans shall automatically be converted to ABR Loans at the end of the
current Interest Periods with respect thereto, (ii) no outstanding ABR Loans may
be converted to Eurodollar Loans at any time and (iii) all Loans made under the
Credit Agreement after the date hereof shall be made as ABR Loans.
(c) The Borrower hereby agrees that prior to November 30, 1997, it will
hold a meeting at which representatives of the Borrower and of Xxxxxxx & Marsal
will provide a financial and strategic update to the Lenders.
4. Cash Flow Forecasts. During the Waiver Period, the Borrower shall
deliver to the Agent and each Lender on the Wednesday of every calender week,
commencing with the first Wednesday to occur after the date hereof, a forecast
of the cash flows, cash balances and line availability of the Borrower and its
Restricted Subsidiaries for the period of four consecutive calender weeks
beginning in the week in which the applicable Wednesday occurs together with a
comparison of the actual cash flows, cash balances and line availability of the
Borrower and its Subsidiaries for the immediately preceding week to the most
recently forecasted cash flows of the Borrower and its Subsidiaries for the week
in which such Wednesday occurs.
5. Amendment to Subsection 7.2(c). Subsection 7.2 of the Credit
Agreement is hereby amended by deleting paragraph (c) of such subsection in its
entirety and substituting in lieu thereof the following new paragraph:
"(c) on or prior to the fifteenth Business Day following the
tenth and twenty-fifth days of each calender month, a certificate in the
form of Exhibit K-1 hereto (a "Borrowing Base Certificate"), certified
by a Responsible Officer of the Borrower as true and correct, setting
forth the amount of Eligible Accounts Receivable, Eligible Inventory,
Eligible DC, Store and ISW Accounts Receivable, Eligible Special Terms
Accounts Receivable, Eligible DC Inventory and Eligible Slow Moving,
Store and ISW Inventory, in each case as of such tenth or twenty-fifth
day of such calender month, as applicable, including an aging schedule
of Eligible Accounts Receivable, provided that the
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determination required by clause (c) of the definition of Eligible
Accounts Receivable shall be made at the end of each fiscal quarter as
of the end of such fiscal quarter and at such other times (not more
frequently than once during each fiscal month) as the Agent may
reasonably request based upon a material increase in the
Accounts deemed ineligible pursuant to clause (b) of the definition of
Eligible Accounts Receivable. In addition, the Borrower shall furnish to
the Agent the information set forth in Exhibit K-2 hereto, with any
deviations therefrom to be approved by the Agent, which approval shall
not be unreasonably withheld;".
6. Amendment to Annex A. Annex A to the Credit Agreement is hereby
amended by deleting the amount "1.25%" from the first row of the column
entitled "Applicable Margin for ABR Loans" and inserting in lieu thereof the
amount "1.50%".
7. Representations and Warranties. On and as of the date hereof and
after giving effect to this Amendment and Waiver, the Borrower hereby confirms,
reaffirms and restates in all material respects the representations and
warranties set forth in Section 5 of the Credit Agreement mutatis mutandis,
except to the extent that such representations and warranties expressly relate
to a specific earlier date in which case the Borrower hereby confirms, reaffirms
and restates in all material respects such representations and warranties as of
such earlier date, provided that the references to the Credit Agreement in such
representations and warranties shall be deemed to refer to the Credit Agreement
as amended prior to the date hereof.
8. Effectiveness. This Amendment and Waiver shall become effective as
of the date hereof upon satisfaction of the following conditions:
(a) receipt by the Agent of counterparts of this Amendment and Waiver
duly executed and delivered by the Borrower and the Required Lenders; and
(b) the payment by the Borrower of all amounts owing under the Credit
Agreement the payment of which has been requested on or prior to the date
hereof, including amounts owing in respect of interest, fees and expenses.
9. Continuing Effect; No Other Amendments or Waivers. Except as
expressly waived hereby; all the terms and provisions of the Credit Agreement
are and shall remain in full force and effect. The amendment and waiver
provided for herein is limited to the specific subsection of the Credit
Agreement specified herein and shall not constitute an amendment or a waiver
of, or an indication of the Agent's or the Lenders' willingness to waive, any
other provisions of the Credit Agreement or the same subsection for any other
date or time period (whether or not such other provisions or compliance with
such subsection for another
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date or time period are affected by the circumstances addressed in this
Amendment and Waiver).
10. Expenses. The Borrower agrees to pay and reimburse the Agent for
all its reasonable costs and out-of-pocket expenses incurred in connection with
the preparation and delivery of this Amendment and Waiver, including, without
limitation, the reasonable fees and disbursements of counsel to the Agent.
11. Counterparts. This Amendment and Waiver may be executed by one or
more of the parties to this Amendment and Waiver on any number of separate
counterparts (including by telecopy), and all of said counterparts taken
together shall be deemed to constitute one and the same instrument. A set of
the copies of this Amendment and Waiver signed by all the parties shall be
delivered to the Borrower and the Agent.
12. GOVERNING LAW. THIS AMENDMENT AND WAIVER AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES UNDER THIS AMENDMENT AND WAIVER SHALL BE GOVERNED
BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF
NEW YORK WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAWS THEREOF.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment and
Waiver to be executed and delivered by their respective duly authorized
officers as of the date first above written.
A.P.S., INC.
By: /s/ E. XXXXXX XXXXXX
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Title: Senior Vice President
THE CHASE MANHATTAN BANK (formerly
known as Chemical Bank), as
Agent and as a Lender
By: /s/ XXXXXXX X. XXXXXXXX
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Title: Managing Director
AMSOUTH BANK OF ALABAMA
By: /s/ XXXXX XXXXXXXX
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Title: Vice President
BANK OF AMERICA NT&SA, as Successor to
BANK OF AMERICA ILLINOIS
By: /s/ M. XXXXXX XxXXXXXX
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Title: Vice President
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XXX XXXX XX XXX XXXX
By: /s/ X. X. XXXXXX
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Title: Vice President
BANK ONE, COLUMBUS, N.A.
By: /s/ XXXXXXX X. XXXXXXXX
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Title: Vice President
BANQUE PARIBAS
By: /s/ XXXXXX X. XXXXX XX.
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Title: Vice President
By: /s/ XXXX XXXXXXXXXX
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Title: Vice President
FIRST AMERICAN NATIONAL BANK
By:
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Title:
FIRST INTERSTATE BANK OF TEXAS
By:
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Title:
FIRST BANK OF MASSACHUSETTS, N.A.
By:
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Title:
THE FUJI BANK, LIMITED, HOUSTON AGENCY
By:
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Title:
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THE MITSUBISHI TRUST AND BANKING
CORPORATION (U.S.A.)
By: /s/ XXXX X. XXXXXX
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Title: First Vice President
NATIONAL BANK OF CANADA
By: /s/ XXXXX X. XXXXX
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Title: Group Vice President
By: /s/ XXXXXXX X. XXXXXXX
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Title: Vice President
NATIONSBANK OF TEXAS, NATIONAL
ASSOCIATION
By: /s/ XXXXXXX XXXXXXXXXXX XX
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Title: Senior Vice President
NBD BANK
By: /s/ XXXXX X. XXXXXX
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Title: First Vice President
SOCIETE GENERALE
By: /s/ XXXXXXX X. XXXXX
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Title: Vice President
XXXXX FARGO BANK (TEXAS), NATIONAL
ASSOCIATION
By: /s/ XXXXX XXXXXXX
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Title: Vice President
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Each of the undersigned hereby consents to the foregoing Amendment and
Waiver and hereby confirms, reaffirms and restates that its obligations under or
in respect of the Credit Agreement and the documents related thereto to which it
is a party are and shall remain in full force and effect after giving effect to
the foregoing Amendment and Waiver.
APS HOLDING CORPORATION
By: /s/ E. XXXXXX XXXXXX
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Title: Senior Vice President
BIG A AUTO PARTS, INC.
By: /s/ E. XXXXXX XXXXXX
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Title: Senior Vice President
AUTOPARTS FINANCE COMPANY, INC.
By: /s/ E. XXXXXX XXXXXX
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Title: Senior Vice President
APS, SUPPLY, INC.
By: /s/ E. XXXXXX XXXXXX
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Title: Senior Vice President
AMERICAN PARTS SYSTEM, INC.
By: /s/ E. XXXXXX XXXXXX
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Title: Senior Vice President
A.P.S., MANAGEMENT SERVICES, INC.
By: /s/ E. XXXXXX XXXXXX
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Title: Senior Vice President
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PARTS, INC.
By: /s/ E. XXXXXX XXXXXX
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Title: Senior Vice President
PRESATT, INC.
By: /s/ E. XXXXXX XXXXXX
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Title: Senior Vice President
INSTALLERS' SERVICE WAREHOUSE, INC.
By: /s/ E. XXXXXX XXXXXX
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Title: Senior Vice President
