Exhibit 10.44
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REAFFIRMATION
AGREEMENT, dated as of November 3, 2004, among ADVANCE STORES COMPANY, INCORPORATED, a
Virginia corporation (the “Borrower”), ADVANCE AUTO PARTS,
INC., a Delaware corporation (“Holdings”), each subsidiary
of Holdings listed on the signature pages hereof (collectively, the “Subsidiary
Loan Parties” and, together with the Borrower
and Holdings, the “Reaffirming
Parties”) and JPMORGAN CHASE BANK
(“JPMCB”), as Administrative Agent and Collateral Agent
under the Restated Credit Agreement referred to below.
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WHEREAS
Holdings, the Borrower, the Lenders party thereto, and JPMCB have entered into an
Amendment and Restatement Agreement (the “Amendment and Restatement
Agreement”), dated as of November 3, 2004, which amends and restates
the Credit Agreement dated as of November 28, 2001, as amended and restated as of
June 28, 2002, as amended and restated as of March 6, 2003, as amended and restated
as of December 5, 2003 (the “Existing Credit Agreement”,
and, as amended and restated after giving effect to the Amendment and Restatement
Agreement, the “Restated Credit Agreement”), among
Holdings, the Borrower, the Lenders from time to time party thereto and JPMCB, as
Administrative Agent;
WHEREAS
each of the Reaffirming Parties is party to one or more of the Security Documents (such
term and each other capitalized term used but not defined herein having the meaning
assigned in the Restated Credit Agreement), the Guarantee Agreement and the Indemnity,
Subrogation and Contribution Agreement (the Security Documents, the Guarantee Agreement
and the Indemnity, Subrogation and Contribution Agreement are collectively referred to
herein as the “Reaffirmed Documents”);
WHEREAS
each Reaffirming Party expects to realize, or has realized, substantial direct and
indirect benefits as a result of the Amendment and Restatement Agreement becoming
effective and the consummation of the transactions contemplated thereby; and
WHEREAS
the execution and delivery of this Agreement is a condition precedent to the consummation
of the transactions contemplated by the Amendment and Restatement Agreement.
NOW,
THEREFORE, in consideration of the foregoing and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the parties
hereto agree as follows:
ARTICLE I
Reaffirmation/Amendment
and Restatement
SECTION
1.01. Reaffirmation. (a) Each of the Reaffirming Parties hereby consents to the
Amendment and Restatement Agreement and the transactions contemplated thereby and hereby
confirms its respective guarantees, pledges, grants of security interests and other
agreements, as applicable, under each of the Reaffirmed Documents to which it is party,
and agrees that notwithstanding the effectiveness of the Amendment and Restatement
Agreement and the consummation of the transactions contemplated thereby, such guarantees,
pledges, grants of security interests and other agreements shall continue to be in full
force and effect and shall accrue to the benefit of the Lenders under the Restated Credit
Agreement. Each of the Reaffirming Parties further agrees to take any action that may be
required or that is reasonably requested by the Administrative Agent to ensure compliance
by Holdings and the Borrower with Sections 5.12 and 5.13 of the Restated Credit Agreement
to the extent such covenant pertains to such Reaffirming Party and hereby reaffirms its
obligations under each similar provision of each Reaffirmed Document to which it is party.
(b)
Each of the Reaffirming Parties hereby confirms and agrees that the obligations
of the Borrower in respect of the Tranche A Term Loans, the Tranche B Term
Loans, Delayed Draw Term Loans and Revolving Exposure of each Lender and the DVA
Obligations constitute Obligations under each of the Reaffirmed Documents.
SECTION
1.02. Amendment and Restatement. On and after the effectiveness of the Amendment
and Restatement Agreement, (i) each reference in each Reaffirmed Document to the
“Credit Agreement”, “thereunder”, “thereof” or words of like
import shall mean and be a reference to the Restated Credit Agreement as such agreement
may be amended, modified or supplemented and in effect from time to time and (ii) the
definition of any term defined in any Reaffirmed Document by reference to the terms
defined in the “Credit Agreement” shall be amended to be defined by reference to
the defined term in the Restated Credit Agreement, as the same may be amended, modified or
supplemented and in effect from time to time.
ARTICLE II
Representations and Warranties
Each
Reaffirming Party hereby represents and warrants, which representations and warranties
shall survive execution and delivery of this Agreement, as follows:
SECTION
2.01. Organization. Such Reaffirming Party is duly organized, validly existing and
in good standing under the laws of the jurisdiction of its organization.
SECTION
2.02. Authority; Enforceability. Such Reaffirming Party has the power and authority
to execute, deliver and carry out the terms and provisions of this Agreement and has taken
all necessary action to authorize the execution, delivery and performance by it of this
Agreement. Such Reaffirming Party has duly executed and delivered this Agreement, and this
Agreement constitutes its legal, valid and binding obligation, enforceable against it in
accordance with its terms.
SECTION
2.03. Reaffirmed Documents. The representations and warranties of such Reaffirming
Party contained in each Reaffirmed Document are true and correct on and as of the date
hereof with the same effect as though made on and as of such date, except to the extent
such representations and warranties expressly relate to an earlier date (in which case
such representations and warranties shall have been true and correct as of such earlier
date).
ARTICLE III
Miscellaneous
SECTION
3.01. Notices. All notices and other communications hereunder shall be made at the
addresses, in the manner and with the effect provided in Article IX of the Restated
Credit Agreement; provided that, for this purpose, the address of each Reaffirming
Party shall be the one specified for the Borrower under the Restated Credit Agreement.
SECTION
3.02. Expenses. Each Reaffirming Party agrees to pay all reasonable costs, fees and
expenses (including reasonable attorneys’ fees and time charges of attorneys for
JPMCB or any Lender, which attorneys may be employees of JPMCB or any Lender) incurred by
JPMCB or any Lender in collecting or enforcing any Reaffirming Party’s obligations
under this Agreement.
SECTION
3.03. Loan Document. This Agreement is a Loan Document executed pursuant to the
Restated Credit Agreement and shall (unless otherwise expressly indicated herein) be
construed, administered and applied in accordance with the terms and provisions thereof.
SECTION
3.04. Section Captions. Section captions used in this Agreement are for convenience
of reference only and shall not affect the construction of this Agreement.
SECTION
3.05. Severability. Wherever possible each provision of this Agreement shall be
interpreted in such manner as to be effective and valid under applicable law, but if any
provision of this Agreement shall be prohibited by or invalid under such law, such
provision shall be ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of this
Agreement.
SECTION
3.06. Successors and Assigns. This Agreement shall inure to the benefit of and be
binding upon the parties hereto and their respective successors and assigns.
SECTION
3.07. Amendment. This Agreement may be waived, modified or amended only by a
written agreement executed by each of the parties hereto.
SECTION
3.08. Counterparts. This Agreement may be executed in any number of counterparts
and by the different parties hereto on separate counterparts, each of which when so
executed and delivered shall be an original but all of which shall together constitute one
and the same agreement. Delivery of an executed counterpart of a signature page of this
Agreement by facsimile or other electronic transmission shall be effective as delivery of
a manually executed counterpart of this Agreement.
SECTION
3.09. No Novation. Neither this Agreement nor the execution, delivery or
effectiveness of the Amendment and Restatement Agreement shall extinguish the obligations
for the payment of money outstanding under the Amendment and Restatement Agreement or the
Restated Credit Agreement or discharge or release the Lien or priority of any Security
Document or any other security therefor. Nothing herein contained shall be construed as a
substitution or novation of the obligations outstanding under the Existing Credit
Agreement or instruments securing the same, which shall remain in full force and effect,
except to any extent modified hereby or by instruments executed concurrently herewith.
Nothing implied in this Agreement, the Amendment and Restatement Agreement or in any other
document contemplated hereby or thereby shall be construed as a release or other discharge
of Holdings, the Borrower or any Subsidiary Loan Party under any Loan Document from any of
its obligations and liabilities as “Holdings”, the “Borrower”, a
“Subsidiary Loan Party”, a “Pledgor” or a “Grantor” under
the Restated Credit Agreement or the Loan Documents. Each of the Existing Credit Agreement
and the Loan Documents shall remain in full force and effect, until (as applicable) and
except to any extent modified hereby or by the Amendment and Restatement Agreement or in
connection herewith and therewith.
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IN
WITNESS WHEREOF, each Reaffirming Party and JPMCB, as Administrative Agent for the benefit
of the Lenders, have caused this Agreement to be duly executed and delivered as of the
date first above written.
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ADVANCE AUTO PARTS, INC., |
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/s/ Xxxxxxx X. Xxxx
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Name: Xxxxxxx X. Xxxx |
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Title: SVP, CFO & Asst. Secretary |
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ADVANCE STORES COMPANY, INCORPORATED, |
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/s/ Xxxxxxx X. Xxxx
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Name: Xxxxxxx X. Xxxx |
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Title: SVP, CFO & Asst. Secretary |
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ADVANCE TRUCKING CORPORATION, |
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/s/ Xxxxxxx X. Xxxx
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Name: Xxxxxxx X. Xxxx |
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Title: SVP |
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WESTERN AUTO SUPPLY COMPANY, |
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/s/ Xxxxxxx X. Xxxx
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Name: Xxxxxxx X. Xxxx |
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Title: SVP, CFO & Asst. Secretary |
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WESTERN AUTO OF PUERTO RICO, INC., |
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/s/ Xxxxxxx X. Xxxx
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Name: Xxxxxxx X. Xxxx |
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Title: SVP |
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WESTERN AUTO OF ST. XXXXXX, INC., |
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/s/ Xxxxxxx X. Xxxx
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Name: Xxxxxxx X. Xxxx |
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Title: SVP |
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ADVANCE MERCHANDISING COMPANY, INC., |
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/s/ Xxxxxxx X. Xxxx
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Name: Xxxxxxx X. Xxxx |
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Title: Treasurer & Asst. Secretary |
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ADVANCE AIRCRAFT COMPANY, INC., |
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/s/ Xxxxxxx X. Xxxx
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Name: Xxxxxxx X. Xxxx |
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Title: Treasurer & Asst. Secretary |
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DISCOUNT AUTO PARTS, INC., |
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/s/ Xxxxxxx X. Xxxx
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Name: Xxxxxxx X. Xxxx |
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Title: VP & Treasurer |
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JPMORGAN CHASE BANK, as Administrative Agent, |
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/s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx |
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Title: Managing Director |
