1 EXHIBIT 10.5.38 SECOND AMENDMENT, dated as of August 28, 1996 (this "Amendment"), 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, and this...
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EXHIBIT 10.5.38
SECOND AMENDMENT, dated as of August 28, 1996 (this
"Amendment"), 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, and this Amendment and as the same may be 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 :
WHEREAS, the Borrower, the Lenders and the Agent are parties
to the Credit Agreement;
WHEREAS, the Borrower has requested that the Lenders amend the
Credit Agreement in the manner provided for herein; and
WHEREAS, the Agent and the Lenders are willing to agree to the
requested amendments, 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. Amendment to Subsection 4.4. Subsection 4.4 of the
Credit Agreement is hereby amended by deleting the reference to subsection
8.6(i) in the seventh line of paragraph (c) thereof and inserting in lieu
thereof a reference to subsection 8.6(k).
3. Amendment to Subsection 8.3. Subsection 8.3 of the Credit
Agreement is hereby amended by (i) deleting the word "and" at the end of
paragraph (m) thereof, (ii) inserting the phrase ";and" in lieu of the period
at the end of paragraph (n) thereof and (iii) inserting a new paragraph (o) at
the end thereof which will read as follows:
"(o) Liens pursuant to or resulting from the A.P.S., Inc.
Executive 401(k) Deferral Plan or the A.P.S., Inc. Executive 401(k)
Deferral Plan Trust Agreement (such plan and trust agreement, collectively,
as amended, supplemented, waived or otherwise modified from time to time,
the "401(k) Plan Documents")."
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4. Amendment to Subsection 8.6. Subsection 8.6 of the Credit
Agreement is hereby amended by (i) deleting the word "and" at the end of
paragraph (i) thereof, (ii) redesignating the current paragraph (j) thereof
paragraph (k) and (iii) inserting a new paragraph (j) which will read as
follows:
"(j) any sale, transfer or other Disposition of any of its
property or assets pursuant to the 401(k) Plan Documents; and".
5. Amendment to Subsection 8.10. Subsection 8.10 of the
Credit Agreement is hereby amended by (i) deleting the word "and" at the end of
paragraph (j) thereof, (ii) inserting the phrase "; and " in lieu of the period
at the end of paragraph (k) thereof and (iii) inserting a new paragraph (l) at
the end thereof which will read as follows:
"(l) Investments pursuant to the 401(k) Plan Documents."
6. Representations and Warranties. On and as of the date
hereof and after giving effect to this Amendment, the Borrower hereby confirms,
reaffirms and restates 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 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
and pursuant to this Amendment.
7. Effectiveness. This Amendment shall become effective as
of the date hereof upon receipt by the Agent of counterparts of this Amendment
duly executed and delivered by the Borrower and the Required Lenders.
8. Continuing Effect; No Other Amendments. Except as
expressly amended hereby, all of the terms and provisions of the Credit
Agreement are and shall remain in full force and effect. The amendments
provided for herein are limited to the specific subsections of the Credit
Agreement specified herein and shall not constitute an amendment of, or an
indication of the Agent's or the Lenders' willingness to amend, any other
provisions of the Credit Agreement or the same subsections for any other date
or time period (whether or not such other provisions or compliance with such
subsections for another date or time period are affected by the circumstances
addressed in this Amendment).
9. 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
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Amendment, including, without limitation, the reasonable fees and disbursements
of counsel to the Agent.
10. Counterparts. This Amendment may be executed by one
or more of the parties to this Amendment 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 signed by all the parties shall be delivered to the Borrower and the
Agent.
11. GOVERNING LAW. THIS AMENDMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES UNDER THIS AMENDMENT 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 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
-----------------------------------
Title: Vice President
THE CHASE MANHATTAN BANK (formerly
known as Chemical Bank), as
Agent and as a Lender
By: /s/ XXXXX X. XXXX
-----------------------------------
Title: Vice President
THE BANK OF NEW YORK
By: /s/ XXXX X. XXXXXX, XX.
-----------------------------------
Title: Vice President
BANK ONE, COLUMBUS, N.A.
By: /s/ XXXXXXX X. XXXXXXXX
-----------------------------------
Title: Vice President
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BANQUE PARIBAS
By: /s/ PIERRE-XXXX xx XXXXXXXX
------------------------------------
Title: General Manager
By: /s/ XXXXXXX X. XXXXX, XX.
------------------------------------
Title: Vice President
BANK OF AMERICA ILLINOIS
By: /s/ XXXXXX XXXXXXX
------------------------------------
Title: Vice President
FIRST INTERSTATE BANK OF TEXAS,
N.A.
BY: /s/ XXXXXXX X. XXXXXXX
------------------------------------
Title: Vice President
FLEET BANK OF MASSACHUSETTS, N.A.
BY: /s/ XXXXX X. XXXXXX
------------------------------------
Title: Senior Vice President
THE FUJI BANK, LIMITED, HOUSTON
AGENCY
BY: /s/ XXXXX X. XXXXXX
------------------------------------
Title: Vice President
NATIONAL BANK OF CANADA
BY: /s/ XXXXX XXXXX
------------------------------------
Title: Group Vice President
By: /s/ XXXX XXXXXXX
------------------------------------
Title: Vice President
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NATIONSBANK OF TEXAS, NATIONAL
ASSOCIATION
By: /s/ F. XXXXX XXXXXXXX
------------------------------------
Title: Senior Vice President
NBD BANK
By: /s/ XXXXXXX X. XxXXXXXXX
------------------------------------
Title:
SOCIETE GENERALE
BY: /s/ XXXXXXX X. XXXXX
------------------------------------
Title:
XXXXX FARGO BANK, N.A.
BY: /s/ XXXX XX XXXX
------------------------------------
Title:
FIRST AMERICAN NATIONAL BANK
BY: /s/ XXXXX XXXXXX
------------------------------------
Title:
AMSOUTH BANK OF ALABAMA
By: /s/ XXXX XXXXXX
------------------------------------
Title:
THE MITSUBISHI TRUST AND BANKING
CORPORATION
BY: /s/ SHINICHI MAKAKUBO
------------------------------------
Title:
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Each of the undersigned hereby consents to the foregoing Amendment 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.
APS HOLDING CORPORATION
By: /s/ E. XXXXXX XXXXXX
----------------------------------
Title: Vice President
BIG A AUTO PARTS, INC.
By: /s/ E. XXXXXX XXXXXX
---------------------------------
Title: Vice President
AUTOPARTS FINANCE COMPANY, INC.
By: /s/ E. XXXXXX XXXXXX
---------------------------------
Title: Vice President
APS SUPPLY, INC.
By: /s/ E. XXXXXX XXXXXX
---------------------------------
Title: Vice President
AMERICAN PARTS SYSTEM, INC.
By: /s/ E. XXXXXX XXXXXX
---------------------------------
Title: Vice President
A.P.S. MANAGEMENT SERVICES, INC.
By: /s/ E. XXXXXX XXXXXX
---------------------------------
Title: Vice President
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PARTS, INC.
By: /s/ E. XXXXXX XXXXXX
---------------------------------
Title: Vice President
PRESATT, INC.
By: /s/ E. XXXXXX XXXXXX
---------------------------------
Title: Vice President
INSTALLERS' SERVICE WAREHOUSE, INC.
By: /s/ E. XXXXXX XXXXXX
---------------------------------
Title: Vice President
