EXHIBIT 10.1.36
FOURTH AMENDMENT, SIXTH WAIVER AND AGREEMENT, dated as of January
26, 1999 (this "AMENDMENT") to the Revolving Credit, Term Loan and Guarantee
Agreement, dated as of February 2, 1998 (as heretofore amended, supplemented or
otherwise modified, the "CREDIT AGREEMENT"), among A.P.S., Inc., a Delaware
corporation and debtor-in-possession (the "BORROWER"), APS Holding Corporation,
a Delaware corporation ("HOLDING"), each of the direct and indirect Subsidiaries
of the Borrower party thereto (together with Holding, the "GUARANTORS"), each of
which Guarantors is a debtor-in-possession, the several banks and other
financial institutions from time to time party thereto (collectively, the
"LENDERS"), and The Chase Manhattan Bank, as agent for the Lenders (in such
capacity, the "AGENT").
W I T N E S S E T H :
WHEREAS, the Borrower, the Guarantors, the Lenders and the Agent
are parties to the Credit Agreement;
WHEREAS, in connection with the occurrence of the Maturity Date
under the Credit Agreement on January 31, 1999, the Borrower has requested that
the Agent and the Lenders confirm and/or waive satisfaction of the conditions
contained in the definition of the term "Maturity Date" set forth in subsection
1.1 of the Credit Agreement to the extension to July 31, 1999 of the Maturity
Date;
WHEREAS, pursuant to the Fifth Waiver, Consent and Agreement, dated
as of January 15, 1999 (the "FIFTH WAIVER"), the Lenders agreed, among other
things, to waive until January 31, 1999 (a) Events of Default arising by reason
of the failure by the Borrower to comply with (i) subsection 8.1(a) (EBITDA) of
the Credit Agreement with respect to the months of September, October and
November, 1998 and (ii) subsection 8.1(b) (Excess Working Capital) of the Credit
Agreement with respect to the months of October, November and December, 1998 and
(b) any Default or Event of Default arising by reason of any failure by the
Borrower to comply with (i) subsection 8.1(a) (EBITDA) of the Credit Agreement
with respect to the month of December, 1998 and (ii) subsection 8.1(b) (Excess
Working Capital) of the Credit Agreement with respect to the month of January,
1999;
WHEREAS, in connection with the extension of the Maturity Date under
the Credit Agreement, the Borrower has requested that the Agent and the Lenders
agree (a) to waive until March 12, 1999 compliance by the Borrower with
subsections 8.1(a) and 8.1(b) of the Credit Agreement and (b) to amend certain
provisions of the Credit Agreement; and
WHEREAS, the Lenders are willing to agree to such requests, but only
upon the terms and conditions of this Amendment;
NOW THEREFORE, in consideration of the premises and for other good
and valuable consideration the receipt of which is hereby acknowledged, the
Borrower, the Guarantors, the Lenders and the Agent hereby agree as follows:
1. DEFINED TERMS. Capitalized terms used herein and not otherwise
defined shall have their respective meanings set forth in the Credit Agreement.
2. EXTENSION OF MATURITY DATE. The Maturity Date under the Credit
Agreement is hereby extended to July 31, 1999 in accordance with the terms and
conditions contained in the definition of the term "Maturity Date" set forth in
subsection 1.1 of the Credit Agreement, PROVIDED that to the extent any such
conditions have not been satisfied, the Lenders hereby waive such conditions.
3. WAIVERS UNDER SUBSECTION 8.1 (FINANCIAL CONDITION Covenants).
(a) The Lenders hereby waive until March 12, 1999 (i) the Events of
Default arising by reason of the failure by the Borrower to comply with
subsection 8.1(a) (EBITDA) of the Credit Agreement for the periods ending on the
last day of the September, 1998, October, 1998, November, 1998 and December 1998
fiscal months of the Borrower and (ii) any Default or Event of Default arising
by reason of any failure by the Borrower to comply with subsection 8.1(a)
(EBITDA) of the Credit Agreement for the period ending on the last day of the
January, 1999 fiscal month of the Borrower.
(b) The Lenders hereby waive until March 12, 1999 the Events of
Default arising by reason of the failure by the Borrower to comply with
subsection 8.1(b) (Excess Working Capital) of the Credit Agreement during the
months of October, November and December, 1998 and January, 1999.
4. AMENDMENT TO SUBSECTION 1.1 (DEFINED TERMS). Subsection 1.1 of
the Credit Agreement is hereby amended by deleting the reference to "$3,000,000"
contained in the definition of the term "Letter of Credit Sublimit" and by
substituting in lieu thereof a reference to "$1,900,000".
5. AMENDMENT TO SUBSECTION 3.1 (LETTERS OF CREDIT). Subsection
3.1(a) of the Credit Agreement is hereby amended by deleting the reference to
"$3,000,000" contained in such subsection and by substituting in lieu thereof a
reference to "$1,900,000".
6. SUBSECTION 4.7 (OPTIONAL TERMINATION OR REDUCTION OF TRANCHE A
COMMITMENT). The Total Tranche A Commitment shall be permanently reduced to
$10,000,000 on the first Business Day after the Cash Account is fully funded in
accordance with the terms of Section 7(b) of this Amendment, which reduction
shall be applied on a PRO RATA basis to reduce the Tranche A Commitment of each
Tranche A Lender.
7. AMENDMENTS AND AGREEMENT WITH RESPECT TO SUBSECTION 4.8
(MANDATORY PREPAYMENT; COMMITMENT TERMINATION; USE OF CASH). (a) The paragraph
with respect to the establishment of the Cash Account added to subsection 4.8(a)
of the Credit
Agreement pursuant to the Third Amendment, Consent and Second Waiver, dated as
of October 9, 1998, is hereby amended by (i) deleting the reference to
"$5,000,000" contained therein and by substituting in lieu thereof a reference
to "$15,000,000" and (ii) deleting the phrase "for general corporate purposes
and Inventory purchases" contained therein and by substituting in lieu thereof
the phrase "for general corporate purposes in connection with the orderly
wind-down of the Borrower and its Subsidiaries".
(b) Pursuant and subject to the terms of the Consent, dated as of
the date hereof (the "CONSENT"), under the Credit Agreement, the Lenders are
consenting to the consummation of the Auto Parts Express Sale, the Joint Venture
Sale and Store Sales (as each such capitalized term is defined in the Consent
and, collectively, the "PERMITTED ASSET SALES"). In accordance with the first
proviso contained in subsection 4.8(d) of the Credit Agreement, but subject to
subsection 4.8(e) of the Credit Agreement, the Required Tranche A Lenders hereby
consent (i) to the application of all Excess Amounts generated from the
Permitted Asset Sales as follows: (A) FIRST, to the deposit in the Cash Account
of an aggregate amount equal to $10,400,000 (the "DEPOSIT Amount"; representing
the difference between $15,000,000 and the $4,600,000 on deposit in the Cash
Account on the date hereof) and (B) SECOND, to the prepayment of the Tranche B
Loans with all Excess Amounts generated from the Permitted Assets Sales in
excess of the Deposit Amount and (ii) to the prepayment of the Tranche B Loans
with any Excess Amount generated on or before March 12, 1999 from funds on
deposit in the Cash Account in excess of $15,000,000.
8. AMENDMENTS TO SUBSECTION 7.2 (CERTIFICATES; OTHER INFORMATION ).
Subsection 7.2(d) of the Credit Agreement is hereby amended by:
(a) deleting the following clauses contained in such subsection:
", (ii) a Jobber count report, and (iii) for the week ending the
prior Saturday (A) a net sales flash report, (B) a Distribution
Center service level report and (C) a post-Petition Date trade
payables report, in each case with respect to this clause (iii),
substantially in the form delivered to the Financial Advisor prior
to the Petition Date."; and
(b) substituting in lieu thereof the following: "and (ii) a payroll
and personnel status report, in form and substance reasonably satisfactory to
the Financial Advisor".
9. AMENDMENT TO SUBSECTION 8.2 (LIMITATION ON INDEBTEDNESS). (a)
Subsection 8.2(c) of the Credit Agreement (permitted purchase money
Indebtedness) is hereby amended by deleting such subsection in its entirety and
by substituting in lieu thereof the following:
"(c) [Intentionally Omitted];".
(b) Subsection 8.2(d) of the Credit Agreement (permitted
insurance premium Indebtedness) is hereby amended by deleting the dollar amount
referenced therein and by substituting in lieu thereof a reference to
"$1,700,000".
10. AMENDMENT TO SUBSECTION 8.9 (LIMITATION ON CAPITAL
EXPENDITURES). Subsection 8.9 of the Credit Agreement is hereby amended by
deleting the reference to "January 25, 1999" contained in such subsection and by
substituting in lieu thereof a reference to "July 25, 1999".
11. AMENDMENT TO SUBJECTION 8.11 (LOANS AND OTHER INVESTMENTS BY
AFCO). Subsection 8.11 of the Credit Agreement is hereby amended by deleting the
reference to "January 25, 1999" contained in such subsection and by substituting
in lieu thereof a reference to "July 25, 1999".
12. AMENDMENT TO SECTION 9 (EVENTS OF DEFAULT). Section 9 of the
Credit Agreement is hereby amended by adding immediately after paragraph (r) of
such Section the word "or" and the following new paragraph (s):
"(s) The Auto Parts Express Sale (as defined in the Consent
dated as of January 26, 1999 under this Agreement) shall not have
been consummated on or prior to February 8, 1999;".
13. ADDITIONAL LIMITATIONS ON BORROWING AND WITHDRAWAL FROM CASH
ACCOUNT; COMPLIANCE WITH DISBURSEMENTS BUDGET.
(a) Notwithstanding anything to the contrary contained in the Credit
Agreement, but subject to paragraphs (b) and (c) below, the Borrower shall not
have the right to, and shall not, request a borrowing of Tranche A Loans, a
withdrawal of funds from the Cash Account, or the issuance of a Letter of Credit
if, after giving effect to such borrowing, withdrawal or issuance, as the case
may be, the sum of the Aggregate Tranche A Outstandings PLUS the aggregate
amount of all funds withdrawn from the Cash Account on or after January 26, 1999
(other than funds constituting Excess Amounts withdrawn and applied to the
prepayment of the Tranche B Loans in accordance with subsection 4.8(d) of the
Credit Agreement) shall exceed $9,000,000.
(b) Nothing contained in this Waiver shall be deemed to affect the
obligations of the Borrower to comply with all of the terms and conditions of
the Credit Agreement, including without limitation, the requirement contained in
subsection 4.8(a) of the Credit Agreement that the Borrower utilize all funds
from time to time on deposit in the Cash Account prior to the borrowing of any
Tranche A Loan.
(c) The Borrower shall not permit the total of all cash
disbursements (such cash disbursements, exclusive of professional fees and
expenditures on account of severance, vacation and retention programs approved
by the Bankruptcy Court, "TOTAL CASH DISBURSEMENTS") by the Borrower and the
Guarantors during any week covered by the disbursements budget, attached hereto
as Exhibit A (the "DISBURSEMENTS BUDGET"), to exceed an amount (the "PERMITTED
DISBURSEMENTS AMOUNT") equal to the sum of (i) the amount for such week set
forth on the Disbursements Budget (A) in the column entitled "Total Operating
Expenses", PLUS (B) in the column entitled "Permitted Variance", PLUS (ii) the
amount, if any, by
which "Total Operating Expenses" set forth on the Disbursements Budget for each
of the immediately preceding two weeks exceeds the Total Cash Disbursements
during such week.
(d) Simultaneously with the delivery on Wednesday of each calendar
week to the Agent and each Lender of the financial and other reports required to
be delivered pursuant to subsection 7.2(d) of the Credit Agreement, the Borrower
shall furnish to the Agent and each Lender, a compliance certificate, certified
by a Responsible Officer of the Borrower as true and correct, certifying
compliance with paragraph (c) of this Section 13 for the immediately preceding
week, together with a comparison of Total Cash Disbursements for such week to
the Permitted Disbursements Amount for such week.
(e) The Borrower and the Guarantors hereby agree that the failure of
the Borrower to comply with its obligations set forth in this Section 13 shall
constitute an immediate Event of Default under paragraph (c) of Section 9 of the
Credit Agreement.
14. REPRESENTATIONS AND WARRANTIES; NO DEFAULT. After giving effect
to this Amendment, the Borrower and the Guarantors hereby represent and warrant
that all representations and warranties contained in the Credit Agreement are
true and correct as of the date hereof (unless stated to relate to a specific
earlier date, in which case, such representations and warranties shall be true
and correct in all material respects as of such earlier date) and that no
Default or Event of Default shall have occurred and be continuing or would
result from the execution and delivery of this Amendment.
15. CONDITIONS TO EFFECTIVENESS OF THIS AMENDMENT. This Amendment
shall become effective as of the date hereof upon receipt by the Agent of
counterparts of this Amendment duly executed by the Borrower, the Guarantors and
the Supermajority Tranche A Lenders.
16. CONTINUING EFFECT; NO OTHER AMENDMENTS OR WAIVERS. Except as
expressly amended or waived pursuant to this Amendment, the Credit Agreement is
and shall continue to be in full force and effect in accordance with its terms,
and this Amendment shall not constitute the Lenders' consent or indicate their
willingness to consent to any other amendment, modification or waiver of the
Credit Agreement or the other Loan Documents, including without limitation, any
amendment, modification or waiver of any subsection amended or waived pursuant
to this Amendment for any other date or time period or in connection with any
other transaction.
17. MISCELLANEOUS.
(a) This Amendment may be executed by the parties hereto on one or
more counterparts, and all of such counterparts shall be deemed to constitute
one and the same instrument. This Amendment may be delivered by facsimile
transmission of the relevant signature pages hereof.
(b) This Amendment shall be governed by, and construed and
interpreted in accordance with, the law of the State of New York.
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:_____________________________
Title:
GUARANTORS:
APS HOLDING CORPORATION
BIG A AUTO PARTS, INC.
AUTOPARTS FINANCE COMPANY, INC.
APS SUPPLY, INC.
AMERICAN PARTS SYSTEM, INC.
A.P.S. MANAGEMENT SERVICES, INC.
INSTALLERS' SERVICE WAREHOUSE, INC.
PARTS, INC.
PRESATT, INC.
By:_____________________________
Title:
THE CHASE MANHATTAN BANK, AS LENDER,
ISSUING BANK AND AGENT
By:_____________________________
Title:
BANK ONE, N.A.
By:_____________________________
Title:
CHASE SECURITIES INC., AS AGENT FOR
THE CHASE MANHATTAN BANK
By:_____________________________
Title:
D.K. ACQUISITION PARTNERS, L.P.
BY: X.X. XXXXXXXX & CO., ITS GENERAL
PARTNER
By:_____________________________
Title:
FOOTHILL CAPITAL CORPORATION
By:_____________________________
Title:
XXXXXXX SACHS CREDIT PARTNERS L.P.
By:_____________________________
Title:
PPM AMERICA, INC., AS AGENT FOR
PPM AMERICA SPECIAL INVESTMENT
FUND, L.P.
By:__________________________
Title:
QUANTUM PARTNERS LDC
By:__________________________
Title:
SOCIETE GENERALE
By:__________________________
Title:
XXXXX FARGO BANK (TEXAS), NATIONAL
ASSOCIATION
By:__________________________
Title:
