WAIVER
Exhibit 99.2
WAIVER, dated as of May 4, 2006 (this “Waiver”), to the SECOND AMENDED AND RESTATED
CREDIT AGREEMENT dated as of July 25, 2005 (as it may be amended or modified from time to time,
this “Agreement”), among CSK AUTO, INC. (the “Company”), the Lenders party hereto, and JPMORGAN
CHASE BANK, N.A., as Administrative Agent.
W I T N E S S E T H
:
:
WHEREAS, the Company, the Administrative Agent, the Co-Syndication Agents, the
Co-Documentation Agents and the Lenders are parties to the Credit Agreement;
WHEREAS, the Company has requested that the Administrative Agent and the Required Lenders
agree to waive compliance with certain provisions of the Credit Agreement; and
WHEREAS, the Administrative Agent has obtained the consent of the Required Lenders to execute
this Waiver, but only upon the terms and conditions set forth herein;
NOW, THEREFORE, for valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and in consideration of the premises contained herein, the parties hereto agree as
follows:
1. Defined Terms. Unless otherwise defined herein, capitalized terms which are
defined in the Credit Agreement are used herein as defined therein.
2. Waivers and Acknowledgement. (a) Until the earliest of (i) July 15, 2006, (ii)
the date on which the Company shall have filed with the Securities and Exchange Commission its
report on Form 10-K for its fiscal year ended January 29, 2006 (the “2005 Form 10-K”) and
its report on Form 10-Q for its fiscal quarter ended April 30, 2006 (the “First Quarter 2006
Form 10-Q”), (iii) the date that is 40 days after the receipt by the Company of a valid notice
from the Trustee under the Indenture in respect of the 7% Senior Subordinated Notes due 2014 (the
“7% Senior Subordinated Notes Indenture”) or the holders of 25% or more in aggregate
principal amount of said Notes to the effect that the Company is in default under said Indenture,
(iv) the date that is 55 days after the receipt by the Company of a valid notice from the Trustee
under the Indenture in respect of the 3 3/8% Senior Exchangeable Notes
(the “3 3/8% Senior
Exchangeable Notes Indenture”) or from the holders of 25% or more in aggregate principal amount
of said Notes to the effect that the Company is in default under said Indenture, and (v) the date
that is 55 days after the receipt by the Company of a valid notice from the Trustee under the
Indenture in respect of the 4 5/8% Senior Exchangeable Notes (the
“4 5/8% Senior Exchangeable Notes
Indenture”) or from the holders of 25% or more in aggregate principal amount of said Notes to
the effect that the Company is in default under said Indenture, the Lenders hereby waive any
Default or Event of Default under the Credit Documents resulting from the Company’s failure to
deliver the 2005 Form 10-K and the First Quarter 2006 Form 10-Q and financial statements for the
fiscal year ended January 29, 2006 and for the first quarter of its 2006 fiscal year and other
information and documents required to be delivered under the Credit Documents in connection with
such report or such financial statements.
(b) The Lenders hereby waive (i) any condition or required representation or warranty that
could not be satisfied or made or deemed made, and (ii) any Default or Event of Default, in
either case to the extent that such condition or required representation or warranty could not
be satisfied or made or deemed made or such Default or Event of Default would not have occurred had
any of the financial statements of the Company referred to in, or furnished to the Lenders pursuant
to, the Credit Documents for any period ended prior to January 29, 2006 been in a form consistent
with any restatements of financial statements of the Company or Holdings as a result of information
obtained or developed in connection with the preparation or audit of the financial statements of
the Company or Holdings for the fiscal year ended January 29, 2006 or in connection with the review
and investigation (the “Audit Committee Review”) by the Audit Committee of the Board of
Directors of Holdings announced in a press release filed with the Securities and Exchange
Commission on March 27, 2006 as part of a report on Form 8-K (the “March 27 8-K”),
provided that all the material changes reflected in such restatements that, in the
reasonable opinion of the Administrative Agent are, or reflect matters relating to financial
condition or results of operation that are, adverse to the interest of the Lenders, are consistent
with the scope of the inventory and vendor allowance matters described in the March 27 8-K (the
“Specified Matters”).
(c) The Lenders acknowledge and agree that until the giving of each notice and the expiration
of each grace period required under the 7% Senior Subordinated Notes
Indenture, the 3 3/8% Senior
Exchangeable Notes Indenture and the 4 5/8% Senior Exchangeable Notes Indenture for an event of
default to occur thereunder, there shall be no Default under clause (e) of Article VII of the
Credit Agreement solely as a result of a default under any such Indenture.
3. Agreement. The Company agrees that prior to its filing of the 2005 Form 10-K, it
shall compute the Borrowing Base and prepare Borrowing Base Certificates in a manner that is
consistent with the treatment of the Specified Matters in the Borrowing Base Certificate dated
April 5, 2006, furnished to the Administrative Agent on such date or as otherwise may be required
by the Administrative Agent, subject to any adjustments thereto (including adjustments to reflect
results of the Audit Committee Review at the time) as shall be reasonably satisfactory to the
Administrative Agent.
4. Conditions to Effectiveness of this Waiver. This Waiver shall become effective
upon receipt by the Administrative Agent of counterparts of this Waiver duly executed or consented
to by the Company, the Administrative Agent and the Required Lenders.
5. Continuing Effect; No Other Waiver. Except as expressly set forth in this Waiver,
all of the terms and provisions of the Credit Documents are and shall remain in full force and
effect and the Company shall continue to be bound by all of such terms and provisions. The waiver
provided for herein is limited as specified herein and shall not constitute (i) any other waiver of
the Credit Documents or (ii) an admission by the Company of any past, present or future Default or
Event of Default under the Credit Documents or any past, present or future default or event of
default under any other indebtedness of the Company or Holdings.
6. Expenses. The Company agrees to pay and reimburse the Administrative Agent for all
its reasonable out-of-pocket costs and expenses incurred in connection with the preparation and
delivery of this Waiver, including, without limitation, the reasonable fees and disbursements of
counsel to the Administrative Agent.
7. Counterparts. This Waiver may be executed by one or more of the parties to this
Waiver 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 Waiver signed by the parties hereto shall be delivered to the Company and the Administrative
Agent. The execution and delivery of this Waiver by any Lender, or by the Administrative Agent
with the consent of any Lender, shall be binding upon such Lender’s successors and assigns
(including transferees of its
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commitments and Loans in whole or in part prior to effectiveness hereof) and binding in
respect of all of its commitments and Loans, including any acquired subsequent to its execution and
delivery hereof and prior to the effectiveness hereof.
8. GOVERNING LAW. THIS WAIVER AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER
THIS WAIVER SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF NEW YORK.
* * * * *
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IN WITNESS WHEREOF, the parties hereto have caused this Waiver to be executed and delivered by
their respective duly authorized officers as of the date first above written.
| CSK AUTO, INC. | ||||||
| By | /s/ XXXXXX XXXXXX | |||||
| Name: Xxxxxx Xxxxxx | ||||||
| Title: President and Chief Operating Officer | ||||||
CSK Auto. Inc. Waiver
| JPMORGAN CHASE BANK, N.A. as Administrative Agent and a Lender |
||||||
| By: | /s/ XXXXX XXXXXXX | |||||
| Name: Xxxxx Xxxxxxx | ||||||
| Title: Managing Director | ||||||
CSK Auto. Inc. Waiver
| Allied Irish Banks, p.l.c., as Lender | ||||||
| By: | /s/ XXXX XXXXXXX | |||||
| Name: Xxxx Xxxxxxx | ||||||
| Title: Director | ||||||
| By: | /s/ XXXXXX XXXX | |||||
| Name: Xxxxxx Xxxx | ||||||
| Title: SVP | ||||||
CSK Auto. Inc. Waiver
| BANK OF AMERICA, N.A., as Lender | ||||||
| By | /s/ XXXXX X. XXXXXX | |||||
| Name: Xxxxx X. Xxxxxx | ||||||
| Title: Senior Vice President | ||||||
CSK Auto. Inc. Waiver
| The CIT Group/Business Credit, Inc., as Lender | ||||||
| By: | /s/ XXXXXX XXXXXX | |||||
| Name: Xxxxxx Xxxxxx | ||||||
| Title: Vice President | ||||||
CSK Auto. Inc. Waiver
| ING CAPITAL LLC | ||||||
| By: | /s/ XXXXXX X. XXXXXXX | |||||
| Name: Xxxxxx X. Xxxxxxx | ||||||
| Title: Managing Director | ||||||
CSK Auto. Inc. Waiver
| NATIONAL CITY BUSINESS CREDIT, INC. | ||||||
| By | /s/ XXX XXXXXX | |||||
| Name: Xxx Xxxxxx | ||||||
| Title: Director | ||||||
CSK Auto. Inc. Waiver
| UBS LOAN FINANCE LLC, | ||||||
| By: | /s/ XXXXXXX X. TAUROW | |||||
| Name: Xxxxxxx X. Taurow | ||||||
| Title: Director | ||||||
| By: | /s/ XXXX X. XXXX | |||||
| Name: Xxxx X. Xxxx | ||||||
| Title: Associate Director | ||||||
CSK Auto. Inc. Waiver
| Wachovia Bank, National Association | ||||||
| By: | /s/ Xxxx Xxxxx | |||||
| Name: Xxxx Xxxxx | ||||||
| Title: Vice President | ||||||
CSK Auto. Inc. Waiver
