EXHIBIT 10.1.33
CONSENT, dated as of October 8, 1998 (this "CONSENT"), 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 "COMPANY"), APS Holding Corporation, a Delaware corporation ("HOLDING"),
each of the direct and indirect Subsidiaries of the Company party thereto
(together with Holding, the "GUARANTORS"), each of which Guarantors is a
debtor-in- possession (the Company and the Guarantors, collectively, the
"DEBTORS"), 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 Company, the Guarantors, the Lenders and the Agent
are parties to the Credit Agreement;
WHEREAS, on September 18, 1998 the Debtors filed with the Bankruptcy
Court a "Motion for Order: (A) Authorizing Assumption and Assignment of (1) a
Lease Relating to Certain Nonresidential Real Property in Monroe, Louisiana and
(2) Certain Executory Contracts Pursuant to Section 365 of the Bankruptcy Code;
(B) Authorizing Sale of Certain Assets in Monroe, Louisiana Free and Clear of
Liens and Encumbrances, Pursuant to Section 363 of the Bankruptcy Code; (C)
Approving Agreement to Provide Limited Services to the Purchaser Pursuant to
Section 363 of the Bankruptcy Code; (D) Approving Break-Up Fee; and (E) Granting
Related Relief" (the "MONROE SALE MOTION");
WHEREAS, pursuant to, and as more fully described in, the Monroe
Sale Motion, the Debtors propose to sell (the "MONROE SALE") certain of their
assets related to the operation of the Debtors' regional distribution center
located in Monroe, Louisiana, including without limitation, inventory, equipment
and fixtures, pursuant to an Asset Purchase Agreement dated as of September 17,
1998 (the "MONROE ASSET PURCHASE AGREEMENT"), among certain of the Debtors and
Xxxxxx Automotive Group, Inc.;
WHEREAS, in connection with the Monroe Sale Motion, the Company has
requested that the Lenders consent under subsection 8.6 of the Credit Agreement
to permit the Company to consummate the Monroe Sale pursuant to the Monroe Asset
Purchase Agreement;
WHEREAS, also on September 18, 1998 the Debtors filed with the
Bankruptcy Court a "Motion For Order Establishing Procedures for Future Asset
Sales" (the "SALE PROCEDURES MOTION");
WHEREAS, pursuant to, and as more fully described in, the Sale
Procedures Motion, the Debtors seek entry of an order of the Bankruptcy Court
(substantially in the form attached as Exhibit A to the Sale Procedures Motion,
the "SALE PROCEDURES ORDER"), approving the establishment of certain notice and
other procedures in connection with the potential sale(s) of assets associated
with the Debtors' store locations (the "STORE SALES");
2
WHEREAS, in connection with the Sale Procedures Motion, the Company
has requested that the Lenders consent under subsection 8.6 of the Credit
Agreement to permit the Debtors to consummate Store Sales in accordance with the
procedures set forth in the Sale Procedures Order; and
WHEREAS, the Lenders are willing to agree to such requests, but only
upon the terms and conditions of this Consent;
NOW THEREFORE, in consideration of the premises and for other good
and valuable consideration the receipt of which is hereby acknowledged, the
Company, 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. CONSENT UNDER SUBSECTION 8.6 (LIMITATION ON SALE OF ASSETS).
Effective as of the date hereof, the Lenders hereby consent under subsection 8.6
of the Credit Agreement solely to the extent necessary to permit the Company:
(a) to consummate the Monroe Sale in accordance with the terms
of the Monroe Asset Purchase Agreement; and
(b) to consummate Store Sales (exclusive of the Asset Sales
otherwise permitted under subsection 8.6(c) of the Credit Agreement) in
accordance with the terms of the Sale Procedures Order;
PROVIDED that (i) the consent contained in clauses (a) and (b) above is
conditioned upon the following: (A) within one Business Day after the receipt of
the Net Cash Proceeds of the Monroe Sale or any Store Sale, as the case may be,
the Company shall apply an amount equal to such Net Cash Proceeds in accordance
with subsection 4.8(d) of the Credit Agreement and (B) no Default or Event of
Default shall then have occurred and be continuing or would result from
consummation of the Monroe Sale or such Store Sale, as the case may be and (ii)
the consent contained in clause (b) above is further conditioned upon the
following: (A) the aggregate purchase price for all Store Sales shall not exceed
$6,000,000 and (B) the purchase price for any Store Sale shall be payable in
cash at closing and shall not be less than the sum of (x) 75% of the book value
of all inventory sold pursuant to such Store Sale, (y) 70% of the book value of
all accounts receivable sold pursuant to such Store Sale which are outstanding
less than 60 days as of the closing date of such Store Sale and (z) 50% of the
book value of all fixed assets sold pursuant to such Store Sale.
3. REPRESENTATIONS AND WARRANTIES; NO DEFAULT. After giving effect
to this Consent, the Debtors 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
3
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 Consent.
CONDITIONS TO EFFECTIVENESS OF THIS CONSENT. This Consent shall
become effective as of the date hereof upon receipt by the Agent of counterparts
of this Consent duly executed by the Company, the Guarantors and the Required
Tranche A Lenders.
CONTINUING EFFECT; NO OTHER AMENDMENTS OR WAIVERS. Except as
expressly amended or waived pursuant to this Consent, the Credit Agreement is
and shall continue to be in full force and effect in accordance with its terms,
and this Consent 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
further amendment, modification or waiver of subsection 8.6 of the Credit
Agreement.
MISCELLANEOUS. This Consent 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 Consent may be delivered by
facsimile transmission of the relevant signature pages hereof.
This Consent shall be governed by, and construed and interpreted
in accordance with, the law of the State of New York.
4
IN WITNESS WHEREOF, the parties hereto have caused this Consent 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:
5
BANK ONE, N.A.
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:
6
ATIONAL BANK OF CANADA
By:
Title:
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:
7
UBS AG, LONDON BRANCH
By:
Title:
By:
Title:
WAYLAND INVESTMENT FUND LLC
BY: CFSC WAYLAND ADVISERS, INC.,
ITS MANAGER
By:
Title:
XXXXX FARGO BANK (TEXAS),
NATIONAL ASSOCIATION
By:
Title:
