EXHIBIT 10.40
AMENDMENT AND CONSENT
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AMENDMENT AND CONSENT, dated as of July 25, 1997 (this "AMENDMENT AND
CONSENT"), to the Credit Agreement, dated as of February 14, 1997 (as
amended, supplemented or otherwise modified from time to time, the "CREDIT
AGREEMENT"), among AFTERMARKET TECHNOLOGY CORP., a Delaware corporation (the
"BORROWER"), the several banks and other financial institutions from time to
time parties thereto (the "LENDERS") and THE CHASE MANHATTAN BANK, a New York
banking corporation, as agent (in such capacity, the "AGENT").
W I T N E S S E T H:
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WHEREAS, the Borrower, the Lenders and the Agent are parties to the
Credit Agreement;
WHEREAS, the Borrower has formed a new entity ATS Remanufacturing Inc.
("Newco") which is a wholly-owned subsidiary of CRS, Inc., a wholly-owned
subsidiary of the Borrower ("CRS");
WHEREAS, either Newco or CRS intends to purchase (the "ATS ACQUISITION")
certain assets of Automatic Transmission Shops Inc. for consideration of
approximately $30,700,000, approximately $12,000,000 of which will be payable
upon the closing of the ATS Acquisition and up to $18,700,000 of which will
be payable over the eight years following such closing;
WHEREAS, the Credit Agreement provides that acquisitions for
consideration in excess of $10,000,000 require the consent of the Required
Lenders; and
WHEREAS, the Borrower has requested that the Required Lenders consent to
the ATS Acquisition, and the Required Lenders are agreeable to such request
upon the terms and subject to the conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and mutual agreements
contained herein, and for other valuable consideration the receipt of which
is hereby acknowledged, the Borrower, the undersigned Lenders and the Agent
hereby agree as follows:
1. DEFINITIONS. All terms defined in the Credit Agreement shall have
such defined meanings when used herein unless otherwise defined herein.
2. CONSENT UNDER SUBSECTION 8.10(j). Pursuant to subsection 8.10(j), the
undersigned Lenders hereby consent to the ATS Acquisition, PROVIDED that (i)
the aggregate consideration payable by the Borrower and its Subsidiaries does
not exceed $30,700,000, (ii) $12,000,000 of such amount is paid in cash at
the closing of the ATS Acquisition, which closing shall not occur later than
August 31, 1997, and (iii) additional amounts, consisting of (x) the deferred
purchase price, (y) deferred bonus payments and (z) deferred employee
payments, payable by the Borrower and its Subsidiaries under the agreements
related to the ATS Acquisition do not exceed $18,700,000 in the aggregate.
3. AMENDMENT OF SUBSECTION 8.2. Subsection 8.2 of the Credit Agreement
is hereby amended to insert at the end of subsection 8.2 the following new
8.2(i), with appropriate changes to the punctuation of such subsection to
reflect such change:
"(i) Indebtedness of the Borrower and its Subsidiaries under the
definitive agreements related to the acquisition by ATS Remanufacturing Inc.
or CRS, Inc. of certain assets of Automatic Transmission Shops, Inc., as such
agreements are in effect on the date of the closing of such transaction, to
the extent that obligations thereunder to pay certain deferred consideration
and related amounts in an aggregate amount not to exceed $18,700,000 (as
reduced, from time to time, pursuant to payments thereof under, or otherwise
pursuant to the terms of, the definitive agreements referred to above)
constitute Indebtedness."
4. CONDITIONS TO EFFECTIVENESS. This Amendment and Consent shall become
effective upon (i) receipt by the Agent of counterparts hereof duly executed
by the Required Lenders and the Borrower, along with the Consent in the form
attached hereto executed by each of the Guarantors, (ii) satisfaction of the
conditions set forth in the proviso to subsection 8.10(j) and (iii)
satisfaction of the requirements of subsections 7.9(b) and 8.16 with respect
to Newco.
5. REPRESENTATIONS. On and as of the date hereof, the Borrower confirms,
reaffirms and restates that the representations and warranties set forth in
section 5 of the Credit Agreement and in the other Loan Documents are true and
correct in all material respects, PROVIDED that the references to the Credit
Agreement therein shall be deemed to be references to this Amendment and
Consent and to the Credit Agreement as affected by this Amendment and
Consent.
6. LIMITED CONSENT. Except as expressly waived and amended herein, the
Credit Agreement shall continue to be, and shall remain, in full force and
effect. This Amendment and Consent shall not be deemed to be a waiver of, or
consent to, or a modification or amendment of, any other term or condition of
the Credit Agreement or any other Loan Document or to prejudice any other
right or rights which the Lenders may now have or may have in the future
under or in connection with the Credit Agreement or any of the instruments or
agreements referred to therein, as the same may be amended from time to time.
7. COUNTERPARTS. This Amendment and Consent may be executed by one or
more of the parties hereto in any number of separate counterparts and all of
said counterparts taken together shall be deemed to constitute one and the
same instrument.
8. GOVERNING LAW. THIS AMENDMENT AND CONSENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment and
Consent to be executed and delivered by their respective duly authorized
officers as of the date first above written.
AFTERMARKET TECHNOLOGY CORP.
By: /s/ Xxxxxxx X. Xxxxxxx
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Title: President and CEO
THE CHASE MANHATTAN BANK, as
Agent and as a Lender
By: /s/ Xxxxx X. Xxxx
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Title: Vice President
XXXXX FARGO BANK, NA
By: /s/ Xxxxxx X. Xxxxx
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Title: Vice President
FIRST NATIONAL BANK OF CHICAGO
By: /s/ Conformed Signature
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Title:
XXXXXX TRUST & SAVINGS
By: /s/ Conformed Signature
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Title:
LASALLE NATIONAL BANK
By: /s/ Conformed Signature
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Title:
BANK OF AMERICA NATIONAL
TRUST AND SAVINGS ASSOCIATION,
D/B/A SEAFIRST BANK
By: /s/ Conformed Signature
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Title:
FIRST UNION NATIONAL BANK OF
NORTH CAROLINA
By: /s/ Xxxx X. Xxxxxx
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Title: Vice President
