10-Q Exhibit 10.4
SUPPLEMENT NO. 1 dated as of June 30, 1999, to the Security
Agreement dated as of April 15, 1998 as amended and restated as
of November 2, 1998, among ADVANCE STORES COMPANY, INCORPORATED,
a Virginia corporation (the "Borrower"), ADVANCE HOLDING
CORPORATION, a Virginia corporation ("Holdings"), each subsidiary
of the Borrower listed on Schedule I thereto (each such
subsidiary individually a "Subsidiary Guarantor" and
collectively, the "Subsidiary Guarantors"; the Subsidiary
Guarantors, Holdings and the Borrower are referred to
collectively herein as the "Grantors") and THE CHASE MANHATTAN
BANK, a New York banking corporation ("Chase"), as collateral
agent (in such capacity, the "Collateral Agent") for the Secured
Parties (as defined therein).
A. Reference is made to (a) the Credit Agreement dated as of April 15,
1998 as amended and restated as of October 19, 1998 (as further amended,
supplemented or otherwise modified from time to time, the "Credit Agreement"),
among the Borrower, Holdings, the lenders from time to time party thereto (the
"Lenders"), Chase, as administrative agent for the Lenders (in such capacity,
the "Administrative Agent"), Collateral Agent and as issuing bank (in such
capacity, the "Issuing Bank"), DLJ Capital Funding, Inc., as syndication agent,
and First Union National Bank, as documentation agent, and (b) the Guarantee
Agreement dated as of April 15, 1998 as amended and restated as of November 2,
1998 (as further amended, supplemented or otherwise modified from time to time,
the "Guarantee Agreement"), among the Subsidiary Guarantors, Holdings and the
Collateral Agent.
B. Capitalized terms used herein and not otherwise defined herein shall
have the meanings assigned to such terms in the Security Agreement and the
Credit Agreement.
C. The Grantors have entered into the Security Agreement in order to induce
the Lenders to make Loans and the Issuing Bank to issue Letters of Credit.
Section 7.15 of Security Agreement provides that additional Subsidiaries of
Holdings may become Grantors under the Security Agreement by execution and
delivery of an instrument in the form of this Supplement. The undersigned
Subsidiary (the "New Grantor") is executing this Supplement in accordance with
the requirements of the Credit Agreement to become a Grantor under the Security
Agreement in order to induce the Lenders to make additional Loans and the
Issuing Bank to issue additional Letters of Credit and as consideration for
Loans previously made and Letters of Credit previously issued.
Accordingly, the Collateral Agent and the New Grantor agree as follows:
SECTION 1. In accordance with Section 7.15 of the Security Agreement, the
New Grantor by its signature below becomes a Grantor under the Security
Agreement with the same force and effect as if originally named therein as a
Grantor and the New Grantor hereby (a) agrees to all the terms and provisions of
the Security Agreement applicable to it as a Grantor thereunder and (b)
represents and warrants that the representations and warranties made by it as a
Grantor thereunder are true and correct on and as of the date hereof. In
furtherance of the foregoing, the New Grantor, as security for the payment and
performance in full of the Obligations (as defined in the Security Agreement),
does hereby create and grant to the Collateral Agent, its successors and
assigns, for the benefit of the Secured Parties, their successors and assigns, a
security interest in and lien on all of the New Grantor's right, title and
interest in and to the Collateral (as defined in the Security Agreement) of the
New Grantor. Each reference to a "Grantor" in the Security Agreement shall be
deemed to include the New Grantor. The Security Agreement is hereby incorporated
herein by reference.
SECTION 2. The New Grantor represents and warrants to the Collateral Agent
and the other Secured Parties that this Supplement has been duly authorized,
executed and delivered by it and constitutes its legal, valid and binding
obligation, enforceable against it in accordance with its terms.
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SECTION 3. This Supplement may be executed in counterparts (and by
different parties hereto on different counterparts), each of which shall
constitute an original, but all of which when taken together shall constitute a
single contract. This Supplement shall become effective when the Collateral
Agent shall have received counterparts of this Supplement that, when taken
together, bear the signatures of the New Grantor and the Collateral Agent.
Delivery of an executed signature page to this Supplement by facsimile
transmission shall be as effective as delivery of a manually signed counterpart
of this Supplement.
SECTION 4. The New Grantor hereby represents and warrants that (a) set
forth on Schedule I attached hereto is a true and correct schedule of the
location of any and all Collateral of the New Grantor other than Collateral (i)
consisting of goods in transit between facilities, whether in vehicles owned by
the applicable Grantor or on common carriers and (ii) located in temporary
warehousing which will remain in such warehousing for no longer than one month
and (b) set forth under its signature hereto, is the true and correct location
of the chief executive office of the New Grantor.
SECTION 5. Except as expressly supplemented hereby, the Security Agreement
shall remain in full force and effect.
SECTION 6. THIS SUPPLEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 7. In case any one or more of the provisions contained in this
Supplement should be held invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein and in the Security Agreement shall not in any way be affected or
impaired thereby (it being understood that the invalidity of a particular
provision in a particular jurisdiction shall not in and of itself affect the
validity of such provision in any other jurisdiction). The parties hereto shall
endeavor in good-faith negotiations to replace the invalid, illegal or
unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the invalid, illegal or unenforceable
provisions.
SECTION 8. All communications and notices hereunder shall be in writing and
given as provided in Section 7.01 of the Security Agreement. All communications
and notices hereunder to the New Grantor shall be given to it at the address set
forth under its signature below.
SECTION 9. The New Grantor agrees to reimburse the Collateral Agent for its
reasonable out-of-pocket expenses in connection with this Supplement, including
the reasonable fees, other charges and disbursements of counsel for the
Collateral Agent.
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IN WITNESS WHEREOF, the New Grantor and the Collateral Agent have duly
executed this Supplement to the Security Agreement as of the day and year first
above written.
ADVANCE TRUCKING CORPORATION, a
Virginia corporation,
by
/s/ J. O'Xxxx Xxxxxxxx
----------------------
Name: J. O'Xxxx Xxxxxxxx
Title: Secretary
Address: 0000 Xxxxxxx Xxxx
Xxxxxxx, XX 00000
THE CHASE MANHATTAN BANK, as
Collateral Agent,
by
/s/ Xxxx X. Xxxxxx
------------------
Name: Xxxx X. Xxxxxx
Title: Managing Director
