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EXHIBIT 10.1.28
EXECUTION VERSION
PLEDGE AGREEMENT, dated as of December 8, 1997, made by
AMERICAN PARTS SYSTEM, INC., a Delaware corporation (the "Pledgor"), in favor
of THE CHASE MANHATTAN BANK (formerly known as Chemical Bank), a New York
banking corporation, as agent (in such capacity, the "Agent") for the several
banks and other financial institutions (collectively, the "Lenders") from time
to time parties to the Amended and Restated Credit Agreement, dated as of
January 25, 1996 (as the same may be amended, supplemented, waived or otherwise
modified from time to time, the "Credit Agreement"), among A.P.S., Inc., a
Delaware corporation (the "Borrower"), the Agent and the Lenders.
W I T N E S S E T H :
WHEREAS, the Borrower, the Lenders and the Agent are parties
to the Credit Agreement, pursuant to which the Lenders have severally agreed to
make Loans and provide other financial accommodations to the Borrower upon the
terms and subject to the conditions set forth therein;
WHEREAS, the Borrower has failed to comply with the
requirements of subsection 8.1 of the Credit Agreement at the last day of the
fiscal quarter ended October 25, 1997 (the "Existing Defaults") and, pursuant
to the Fifth Amendment and Waiver, dated as of October 25, 1997, to the Credit
Agreement, the Lenders have waived the Existing Defaults until December 31,
1997;
WHEREAS, the Borrower has requested that the Agent and the
Lenders enter into that certain Sixth Amendment, Waiver and Agreement, dated as
of December 8, 1997, to the Credit Agreement (the "Sixth Amendment and
Waiver"), pursuant to which the Lenders would, among other things, agree,
subject to the terms and conditions thereof, to forbear, until February 10,
1998 or the occurrence of certain other events, from the exercise of their
rights and remedies under the Loan Documents and applicable law with respect to
the Existing Defaults following the expiration of the Fifth Amendment and
Waiver;
WHEREAS, in connection with, and as a condition precedent to,
the execution of the Credit Agreement, the Pledgor executed and delivered to
the Agent the Amended and Restated Subsidiaries' Guarantee, dated as of January
25, 1996 (the "Subsidiaries Guarantee"), pursuant to which, among other things,
the Pledgor unconditionally and irrevocably guaranteed to the Agent, for the
ratable benefit of the Lenders, the prompt and complete payment and performance
by the Borrower when due and payable of the Obligations (as defined in the
Subsidiaries Guarantee); and
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WHEREAS, it is a condition precedent to the effectiveness of
the Sixth Amendment and Waiver that, in order to further secure the Pledgor's
obligations under the Subsidiaries Guarantee, the Pledgor shall have executed
and delivered this Agreement to the Agent for the ratable benefit of the
Lenders;
NOW, THEREFORE, in consideration of the premises contained
herein and to induce the Lenders to enter into the Sixth Amendment and Waiver,
the Pledgor hereby agrees with the Agent, for the benefit of the Lenders, as
follows:
1. Defined Terms. (a) Unless otherwise defined herein,
terms which are defined in the Credit Agreement and used herein are so used as
so defined.
(b) The following terms shall have the following
meanings:
"Agreement": this Pledge Agreement, as the same may be
amended, supplemented, waived or otherwise modified from time to time.
"Code": the Uniform Commercial Code from time to time in
effect in the State of New York.
"Collateral": the Pledged Stock and all Proceeds thereof.
"Collateral Account": any account established to hold money
Proceeds, maintained under the sole dominion and control of the Agent,
subject to withdrawal by the Agent for the account of the Lenders only
as provided in paragraph 8(a).
"Issuer": the company identified on Schedule 1 attached
hereto as the issuer of the Pledged Stock.
"Obligations": as defined in the Subsidiaries Guarantee.
"Pledged Stock": the shares of capital stock listed on
Schedule 1 hereto, together with all stock certificates, stock options
or similar rights of any nature whatsoever that may be issued or
granted by the Issuer to the Pledgor while this Agreement is in
effect.
"Proceeds": all "proceeds" as such term is defined in Section
9-306(1) of the Code and, in any event, shall include, without
limitation, all dividends or other income
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from the Pledged Stock, collections thereon or distributions with
respect thereto.
"Securities Act": the Securities Act of 1933, as amended.
(c) The words "hereof," "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement, and section and
paragraph references are to this Agreement unless otherwise specified.
(d) The meanings given to terms defined herein shall be
equally applicable to both the singular and plural forms of such terms.
2. Pledge; Grant of Security Interest. The Pledgor hereby
delivers to the Agent, for the ratable benefit of the Lenders, all of the
Pledged Stock and hereby grants to Agent, for the ratable benefit of the
Lenders, a security interest in the Collateral, as collateral security for the
prompt and complete payment and performance when due (whether at the stated
maturity, by acceleration or otherwise) of the Obligations.
3. Stock Powers. Concurrently with the delivery to the Agent
of each certificate representing one or more shares of Pledged Stock pursuant
to paragraph 2 above, the Pledgor shall deliver an undated stock power covering
such certificate, duly executed in blank by the Pledgor with, if the Agent so
requests, signature guaranteed.
4. Representations and Warranties. The Pledgor represents
and warrants that:
(a) The shares of Pledged Stock constitute all the issued and
outstanding shares of all classes of the capital stock of the Issuer
held by the Pledgor.
(b) All the shares of the Pledged Stock have been duly and
validly issued and are fully paid and nonassessable.
(c) The Pledgor is the record and beneficial owner of, and
has good and marketable title to, the Pledged Stock, free of any and
all Liens or options in favor of, or material adverse claims on any of
the Pledged Stock of, any other Person, except the security interest
created by this Agreement and Liens arising by operation of law.
(d) Upon delivery to the Agent of the stock certificates
evidencing the Pledged Stock, the security interest created by this
Agreement, assuming the continuing
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possession of the Pledged Stock by the Agent, will constitute a valid,
perfected first priority security interest in the Collateral,
enforceable in accordance with its terms against all creditors of the
Pledgor and any Persons purporting to purchase any Collateral from the
Pledgor, except as affected by bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws relating
to or affecting creditors' rights generally, general equitable
principles (whether considered in a proceeding in equity or at law)
and an implied covenant of good faith and fair dealing; provided,
however, that the above representation and warranty does not apply to
any Lien arising by operation of law and entitled to a priority over
the security interest created by this Agreement.
5. Covenants. The Pledgor covenants and agrees with the
Agent and the Lenders that, from and after the date of this Agreement until
payment in full of the Notes, the Reimbursement Obligations and the other
Obligations then due and owing, the termination of the Commitments and the
expiration, termination or return to the Issuing Lender of the Letters of
Credit:
(a) If the Pledgor shall, as a result of its ownership of the
Pledged Stock, become entitled to receive or shall receive any stock
certificate (including, without limitation, any certificate
representing a stock dividend or a distribution in connection with any
reclassification, increase or reduction of capital or any certificate
issued in connection with any reorganization), stock option or similar
rights, whether in addition to, in substitution of, as a conversion
of, or in exchange for any shares of the Pledged Stock, or otherwise
in respect thereof, the Pledgor shall accept the same as the agent of
the Agent and the Lenders, hold the same in trust for the Agent and
the Lenders and deliver the same forthwith to the Agent in the exact
form received, duly indorsed by the Pledgor to the Agent, if required,
together with an undated stock power covering such certificate duly
executed in blank by the Pledgor and with, if the Agent so requests,
signature guaranteed, to be held by the Agent, subject to the terms
hereof, as additional collateral security for the Obligations. Any
sums paid upon or in respect of the Pledged Stock upon the liquidation
or dissolution of the Issuer (other than pursuant to a transaction
permitted under subsection 8.5 or 8.6 of the Credit Agreement) shall
be paid over to the Agent to be held by it hereunder as additional
collateral security for the Obligations, and in case any property
shall be distributed upon or with respect to the Pledged Stock
pursuant to the recapitalization or reclassification of the capital of
the Issuer or pursuant to the reorganization thereof (other than
pursuant to a
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transaction permitted under subsection 8.5 or 8.6 of the Credit
Agreement), the property so distributed shall be delivered to the
Agent to be held by it hereunder as additional collateral security for
the Obligations. If any such sums of money or property so paid or
distributed in respect of the Pledged Stock shall be received by the
Pledgor, the Pledgor shall, until such money or property is paid or
delivered to the Agent, hold such money or property in trust for the
Lenders, segregated from other funds of the Pledgor, as additional
collateral security for the Obligations.
(b) Without the prior written consent of the Agent, the
Pledgor will not (1) vote to enable, or take any other action to
permit, the Issuer to issue any stock or other equity securities of
any nature or to issue any other securities convertible into or
granting the right to purchase or exchange for any stock or other
equity securities of any nature of the Issuer, to any Person other
than the Pledgor, (2) sell, assign, transfer, exchange, or otherwise
dispose of, or grant any option with respect to, the Collateral,
except as permitted by subsection 8.5 or 8.6 of the Credit Agreement,
(3) create, incur or permit to exist any Lien or option in favor of,
or any material adverse claim of any Person with respect to, any of
the Collateral, or any interest therein, except for the security
interests created by this Agreement, Liens arising by operation of law
or (4) except as permitted by the Credit Agreement, enter into any
agreement or undertaking restricting the right or ability of the
Pledgor or the Agent to sell, assign or transfer any of the
Collateral.
(c) The Pledgor shall defend the security interest created by
this Agreement as a perfected security interest against claims and
demands of all Persons whomsoever. At any time and from time to time,
upon the written request of the Agent, and at the sole expense of the
Pledgor, the Pledgor will promptly and duly execute and deliver such
further instruments and documents and take such further actions as the
Agent may reasonably request for the purposes of obtaining or
preserving the full benefits of this Agreement and of the rights and
powers herein granted. In the event that an Event of Default has
occurred and is continuing, if any amount payable under or in
connection with any of the Collateral shall be or become evidenced by
any instrument (including any promissory note) or chattel paper (in
each case as defined in the Code), such instrument or chattel paper
shall be immediately delivered to the Agent, duly endorsed in a manner
satisfactory to the Agent, to be held as Collateral pursuant to this
Agreement.
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(d) The Pledgor shall pay, and save the Agent and the Lenders
harmless from, any and all liabilities with respect to, or resulting
from any delay in paying, any and all stamp, excise, sales or other
similar taxes which may be payable or determined to be payable with
respect to any of the Collateral or in connection with any of the
transactions contemplated by this Agreement.
6. Cash Dividends; Voting Rights. Unless an Event of Default
shall have occurred and be continuing and the Agent shall have given notice to
the Pledgor of the Agent's intent to exercise its corresponding rights pursuant
to Section 7 below, the Pledgor shall be permitted to receive all dividends and
distributions paid or made in respect of the Pledged Stock and to exercise all
voting and corporate and other rights with respect to the Pledged Stock;
provided, however, that no vote shall be cast or corporate right exercised or
other action taken which would materially impair the Collateral (other than
pursuant to a transaction permitted under subsection 8.3, 8.5 or 8.6 of the
Credit Agreement) or result in any violation of any provision of the Credit
Agreement, the Notes, this Agreement or any other Loan Document.
7. Rights of the Lenders and the Agent. (a) All money
Proceeds received by the Agent hereunder shall be held by the Agent for the
benefit of the Lenders in a Collateral Account. All Proceeds while held by the
Agent in a Collateral Account (or by the Pledgor in trust for the Agent and the
Lenders) shall continue to be held as collateral security for all the
Obligations and shall not constitute payment thereof until applied as provided
in Section 8(a).
(b) If an Event of Default shall occur and be continuing
and the Agent shall give notice to the Pledgor of its intent to exercise such
rights, (i) the Agent shall have the right to receive any and all cash
dividends paid in respect of the Pledged Stock and make application thereof to
the Obligations in such order as the Agent may determine and (ii) the Agent
shall have the right to cause all shares of the Pledged Stock to be registered
in the name of the Agent or its nominee, and the Agent or its nominee may
thereafter exercise (A) all voting, corporate and other rights pertaining to
such shares of the Pledged Stock at any meeting of shareholders of the Issuer
or otherwise and (B) any and all rights of conversion, exchange, subscription
and any other rights, privileges or options pertaining to such shares of the
Pledged Stock as if it were the absolute owner thereof (including, without
limitation, the right to exchange at its discretion any and all of the Pledged
Stock upon the merger, consolidation, reorganization, recapitalization or other
fundamental change in the corporate structure of the Issuer, or upon the
exercise by the Pledgor or the Agent of any right,
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privilege or option pertaining to such shares of the Pledged Stock, and in
connection therewith, the right to deposit and deliver any and all of the
Pledged Stock with any committee, depositary, transfer agent, registrar or
other designated agency upon such terms and conditions as the Agent may
determine), all without liability (other than for its gross negligence or
willful misconduct) except to account for property actually received by it, but
the Agent shall have no duty to the Pledgor to exercise any such right,
privilege or option and shall not be responsible for any failure to do so or
delay in so doing.
8. Remedies. (a) If an Event of Default shall have
occurred and be continuing, at any time at the Agent's election, the Agent may
apply all or any part of Proceeds held in any Collateral Account in payment of
the Obligations in such order as the Agent may elect.
(b) If an Event of Default shall occur and be continuing,
the Agent, on behalf of the Lenders, may exercise all rights and remedies of a
secured party under the Code, and, to the extent permitted by law, all other
rights and remedies granted in this Agreement and in any other instrument or
agreement securing, evidencing or relating to the Obligations. Without
limiting the generality of the foregoing, the Agent, without demand of
performance or other demand, presentment, protest, advertisement or notice of
any kind (except any notice required by law referred to below) to or upon the
Pledgor or any other Person (all and each of which demands, defenses,
advertisements and notices are hereby waived), may in such circumstances, to
the extent permitted by law, forthwith collect, receive, appropriate and
realize upon the Collateral, or any part thereof, and/or may forthwith sell,
assign, give option or options to purchase or otherwise dispose of and deliver
the Collateral or any part thereof (or contract to do any of the foregoing), in
one or more parcels at public or private sale or sales, in the over-the-counter
market, at any exchange, broker's board or office of the Agent or any Lender or
elsewhere upon such terms and conditions as it may deem advisable and at such
prices as it may deem best, for cash or on credit or for future delivery
without assumption of any credit risk. The Agent or any Lender shall have the
right, to the extent permitted by law, upon any such sale or sales, to purchase
the whole or any part of the Collateral so sold, free of any right or equity of
redemption in the Pledgor, which right or equity is hereby waived or released.
The Agent shall apply any Proceeds from time to time held by it and the net
proceeds of any such collection, recovery, receipt, appropriation, realization
or sale, after deducting all reasonable costs and expenses of every kind
incurred in respect thereof or incidental to the care or safekeeping of any of
the Collateral or in any way relating to the Collateral or the rights of the
Agent and the Lenders hereunder, including, without
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limitation, reasonable attorneys' fees and disbursements of counsel to the
Agent, to the payment in whole or in part of the Obligations, in such order as
the Agent may elect, and only after such application and after the payment by
the Agent of any other amount required by any provision of law, including,
without limitation, Section 9-504(1)(c) of the Code, need the Agent account for
the surplus, if any, to the Pledgor. To the extent permitted by applicable
law, the Pledgor waives all claims, damages and demands it may acquire against
the Agent or any Lender arising out of the repossession, retention or sale of
the Collateral, other than any such claims, damages and demands that may arise
from the gross negligence or willful misconduct of any of them. If any notice
of a proposed sale or other disposition of Collateral shall be required by law,
such notice shall be deemed reasonable and proper if given at least 10 days
before such sale or other disposition. The Pledgor waives and agrees not to
assert any rights or privileges which it may acquire under Section 9-112 of the
Code. The Pledgor shall remain liable for any deficiency if the proceeds of
any sale or other disposition of Collateral are insufficient to pay the then
outstanding Obligations and the fees and disbursements of any attorneys
employed by the Agent or any Lender to collect such deficiency.
9. Registration Rights; Private Sales. (a) If the Agent
shall determine to exercise its right to sell any or all of the Pledged Stock
pursuant to Section 8 hereof, and if in the reasonable opinion of the Agent it
is necessary or reasonably advisable to have the Pledged Stock, or that portion
thereof to be sold, registered under the provisions of the Securities Act, the
Pledgor will use best efforts to cause the Issuer (i) to execute and deliver,
and cause the directors and officers of the Issuer to execute and deliver, all
such instruments and documents, and do or cause to be done all such other acts
as may be, in the reasonable opinion of the Agent, necessary or reasonably
advisable to register the Pledged Stock to be sold, or that portion thereof to
be sold under the provisions of the Securities Act, (ii) to use its best
efforts to cause the registration statement relating thereto to become
effective and to remain effective for a period of not more than one year from
the date of the first public offering of the Pledged Stock, or that portion
thereof to be sold, ending when all such Pledged Stock is sold, and (iii) to
make all amendments thereto and/or to the related prospectus which, in the
reasonable opinion of the Agent, are necessary or reasonably advisable, all in
conformity with the requirements of the Securities Act and the rules and
regulations of the Securities and Exchange Commission applicable thereto. If
the Agent shall determine to exercise its right to sell any or all of the
Pledged Stock pursuant to Section 8 hereof, and if in the reasonable opinion of
the Agent it is necessary or reasonably advisable to comply with the provisions
of the securities or "Blue Sky" laws of any jurisdiction, the
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Pledgor agrees to use best efforts to cause the Issuer to comply with the
provisions of the securities or "Blue Sky" laws of any and all jurisdictions
which the Agent shall reasonably designate and to make available to its
security holders, as soon as practicable, an earnings statement (which need not
be audited) which will satisfy the provisions of Section 11(a) of the
Securities Act.
(b) The Pledgor recognizes that the Agent may be unable to
effect a public sale of any or all the Pledged Stock, by reason of certain
prohibitions contained in the Securities Act and applicable state securities
laws or otherwise, and may be compelled to resort to one or more private sales
thereof to a restricted group of purchasers which will be obliged to agree,
among other things, to acquire such securities for their own account for
investment and not with a view to the distribution or resale thereof. The
Pledgor acknowledges and agrees that any such private sale may result in prices
and other terms less favorable than if such sale were a public sale and,
notwithstanding such circumstances, agrees that any such private sale shall be
deemed to have been made in a commercially reasonable manner. The Agent shall
be under no obligation to delay a sale of any of the Pledged Stock for the
period of time necessary to permit the Issuer to register such securities for
public sale under the Securities Act, or under applicable state securities
laws, even if the Issuer would agree to do so.
(c) The Pledgor further agrees to use its best efforts to do
or cause to be done all such other acts as may be necessary to make such sale
or sales of all or any portion of the Pledged Stock pursuant to this Section 9
valid and binding and in compliance with any and all other applicable
Requirements of Law. The Pledgor further agrees that a breach of any of the
covenants contained in this Section will cause irreparable injury to the Agent
and the Lenders, that the Agent and the Lenders have no adequate remedy at law
in respect of such breach and, as a consequence, that each and every covenant
contained in this Section shall be specifically enforceable against the
Pledgor, and, to the extent permitted by law, the Pledgor hereby waives and
agrees not to assert any defenses against an action for specific performance of
such covenants except for a defense that no Event of Default has occurred and
is continuing under the Credit Agreement.
10. Irrevocable Authorization and Instruction to Issuers.
The Pledgor hereby authorizes and instructs the Issuer to comply with any
instruction received by it from the Agent in writing that (a) states that an
Event of Default has occurred and is continuing and (b) is otherwise in
accordance with the terms of this Agreement, without any other or further
instructions from
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the Pledgor, and the Pledgor agrees that the Issuer shall be fully protected in
so complying.
11. Agent's Appointment as Attorney-in-Fact. (a) The
Pledgor hereby irrevocably constitutes and appoints the Agent and any officer
or agent of the Agent, with full power of substitution, as its true and lawful
attorney-in-fact with full irrevocable power and authority in the place and
stead of the Pledgor and in the name of the Pledgor or in the Agent's own name,
from time to time in the Agent's discretion, in the event that an Event of
Default has occurred and is continuing, and to the extent permitted by law, to
take any and all appropriate action and to execute any and all documents and
instruments which may be necessary or reasonably desirable to accomplish the
purposes of this Agreement, including, without limitation, any financing
statements, endorsements, assignments or other instruments of transfer.
(b) The Pledgor hereby ratifies all that said attorneys shall
lawfully do or cause to be done pursuant to the power of attorney granted in
Section 11(a). All powers, authorizations and agencies contained in this
Agreement with respect to the Collateral are coupled with an interest and are
irrevocable until payment in full of the Notes, the Reimbursement Obligations
and the other Obligations then due and owing, the termination of the
Commitments and the expiration, termination or return to the Issuing Lender of
the Letters of Credit.
12. Duty of Agent. The Agent's sole duty with respect to the
custody, safekeeping and physical preservation of the Collateral in its
possession, under Section 9-207 of the Code or otherwise, shall be to deal with
it in the same manner as the Agent deals with similar securities and property
for its own account. Neither the Agent, any Lender nor any of their respective
directors, officers, employees or agents shall be liable for failure to demand,
collect or realize upon any of the Collateral or for any delay in doing so or
shall be under any obligation to sell or otherwise dispose of any Collateral
upon the request of the Pledgor or any other Person or to take any other action
whatsoever with regard to the Collateral or any part thereof.
13. Execution of Financing Statements. Pursuant to Section
9-402 of the Code, the Pledgor authorizes the Agent to file financing
statements with respect to the Collateral without the signature of the Pledgor
in such form and in such filing offices as the Agent reasonably determines
appropriate to perfect the security interests of the Agent under this
Agreement. A carbon, photographic or other reproduction of this Agreement
shall be sufficient as a financing statement for filing in any jurisdiction.
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14. Authority of Agent. The Pledgor acknowledges that the
rights and responsibilities of the Agent under this Agreement with respect to
any action taken by the Agent or the exercise or non-exercise by the Agent of
any option, voting right, request, judgment or other right or remedy provided
for herein or resulting or arising out of this Agreement shall, as between the
Agent and the Lenders, be governed by the Credit Agreement and by such other
agreements with respect thereto as may exist from time to time among them, but,
as between the Agent and the Pledgor, the Agent shall be conclusively presumed
to be acting as agent for the Lenders with full and valid authority so to act
or refrain from acting, and neither the Pledgor nor the Issuer shall be under
any obligation to make any inquiry respecting such authority.
15. Notices. All notices, requests and demands under this
Agreement shall be given in accordance with subsection 11.2 of the Credit
Agreement, except that notice to the Pledgor shall be given at the address set
forth under its signature below.
16. Release of Collateral and Termination. (a) At such time
as the payment in full of the Notes, the Reimbursement Obligations and the
other Obligations then due and owing shall have occurred, the Commitments have
been terminated and the Letters of Credit have expired, terminated or been
returned to the Issuing Lender, the Collateral shall be released from the Liens
created hereby, and this Agreement and all obligations (other than those
expressly stated to survive such termination) of the Agent and the Pledgor
hereunder shall terminate, all without delivery of any instrument or
performance of any act by any party, and all rights to the Collateral shall
revert to the Pledgor. Upon request of the Pledgor following any such
termination, the Agent shall deliver (at the sole cost and expense of the
Pledgor) to the Pledgor any Collateral held by the Agent hereunder, and execute
and deliver (at the sole cost and expense of the Pledgor) to the Pledgor such
documents as the Pledgor shall reasonably request to evidence such termination.
(b) If any of the Collateral shall be sold, transferred
or otherwise disposed of by the Pledgor in a transaction permitted by the
Credit Agreement, then the Agent shall execute and deliver to the Pledgor (at
the sole cost and expense of the Pledgor) all releases or other documents
necessary or reasonably desirable for the release of the Liens created hereby
on such Collateral.
17. Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
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unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
18. Amendments in Writing; No Waiver; Cumulative Remedies.
(a) None of the terms or provisions of this Agreement may be waived, amended,
supplemented or otherwise modified except by a written instrument executed by
the Pledgor and the Agent, provided that, at the Pledgor's request, any
provision of this Agreement for the benefit of the Agent and/or the Lenders may
be waived by the Agent in a written letter or agreement executed by the Agent
or by telex or facsimile transmission from the Agent.
(b) Neither the Agent nor any Lender shall by any act (except
by a written instrument pursuant to Section 18(a) hereof), delay, indulgence,
omission or otherwise be deemed to have waived any right or remedy hereunder or
to have acquiesced in any Default or Event of Default or in any breach of any
of the terms and conditions hereof. No failure to exercise, nor any delay in
exercising, on the part of the Agent or any Lender, any right, power or
privilege hereunder shall operate as a waiver thereof. No single or partial
exercise of any right, power or privilege hereunder shall preclude any other or
further exercise thereof or the exercise of any other right, power or
privilege. A waiver by the Agent or any Lender of any right or remedy
hereunder on any one occasion shall not be construed as a bar to any right or
remedy which the Agent or such Lender would otherwise have on any future
occasion.
(c) The rights and remedies herein provided are cumulative,
may be exercised singly or concurrently and are not exclusive of any other
rights or remedies provided by law.
19. Section Headings. The section headings used in this
Agreement are for convenience of reference only and are not to affect the
construction hereof or be taken into consideration in the interpretation
hereof.
20. Successors and Assigns. This Agreement shall be binding
upon the successors and assigns of the Pledgor and shall inure to the benefit
of the Agent and the Lenders and their successors and assigns.
21. GOVERNING LAW. THIS AGREEMENT 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 CONFLICT OF LAWS THEREOF.
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IN WITNESS WHEREOF, the undersigned has caused this Agreement
to be duly executed and delivered as of the date first above written.
AMERICAN PARTS SYSTEM, INC.
By:
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Title:
Address for Notices:
00000 Xxxx X. Xxxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxx, Xxxxx 00000-0000
Attention: Chief Financial Officer
Telecopy:(000) 000-0000
and
Attention: General Counsel
Telecopy: (000) 000-0000
AGREED TO AND ACCEPTED
AS OF THE DATE HEREOF BY:
THE CHASE MANHATTAN BANK, as Agent
By:
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Title:
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ACKNOWLEDGEMENT AND CONSENT
The undersigned hereby acknowledges receipt of a copy of the
Pledge Agreement (as the same may be amended, supplemented, waived or otherwise
modified from time to time, the "Pledge Agreement") dated as of December 8,
1997, made by American Parts System, Inc. (the "Pledgor"), in favor of The
Chase Manhattan Bank, as agent (in such capacity, the "Agent") for the several
banks and other financial institutions (collectively, the "Lenders") from time
to time parties to the Credit Agreement dated as of January 25, 1996, among
A.P.S., Inc., the Lenders and the Agent. The undersigned agrees for the
benefit of the Agent and the Lenders as follows:
1. The undersigned will be bound by the terms of the
Pledge Agreement and will comply with such terms insofar as such terms
are applicable to the undersigned.
2. The undersigned will notify the Agent promptly in
writing of the occurrence of any of the events described in Section
5(a) of the Pledge Agreement.
3. The terms of Section 9(c) of the Pledge Agreement
shall apply to it, mutatis mutandis, with respect to all actions that
may be required of it under or pursuant to or arising out of Section 9
of the Pledge Agreement.
INSTALLERS' SERVICE WAREHOUSE, INC.
By:
------------------------------
Title:
---------------------------
15
SCHEDULE 1
TO PLEDGE AGREEMENT
DESCRIPTION OF PLEDGED STOCK
Stock
Class of Certificate No. of
Issuer Stock* No. Shares
----------------------------- ----- ----------- ------
INSTALLERS' SERVICE Common [1] [1000]
WAREHOUSE, INC.
-------------------
* Stock is common stock unless otherwise indicated.
