THIRD WAIVER
Exhibit 99.1
THIRD WAIVER dated as of June 11, 2007 (this “Waiver”) to the SECOND AMENDED AND
RESTATED CREDIT AGREEMENT dated as of July 25, 2005 (as amended or modified, the “Credit
Agreement”), among CSK AUTO, INC. (the “Company”), the Lenders, the Co-Syndication
Agents and the Co-Documentation Agents party thereto, and JPMORGAN CHASE BANK, N.A., as
Administrative Agent.
WITNESSETH:
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. Waiver. Until the earliest of the following (such earliest date, the
“Financial Statement Waiver Termination Date”) of:
(i) the first date on which an event of default has occurred and is continuing under
the Indenture in respect of the Company’s 63/4% Senior Exchangeable Notes due 2025 (as the
same may be amended or otherwise modified from time to time as permitted under the Credit
Agreement, the “63/4% Notes”) which would entitle the holders thereof to accelerate
all or any of the 63/4% Notes, any applicable grace period having expired (it being understood
that a grace period that begins upon the giving of notice shall be considered an applicable
grace period and shall not be considered expired until the notice has been given and the
grace period has run);
(ii) the date on which the Company has filed with the Securities and Exchange
Commission its report on Form 10-K for its fiscal year ended February 4, 2007 (the “2006
Form 10-K”), its report on Form 10-Q for the first quarter of its 2007 fiscal year, and
its reports on Form 10-Q for each fiscal quarter of its 2006 fiscal year (collectively, the
“Specified Form 10-Qs”); and
(iii) August 15, 2007;
the Lenders hereby waive the requirements under the Credit Documents that the Company deliver the
2006 Form 10-K, the Specified Form 10-Qs and financial statements for the fiscal
year ended February 4, 2007, for the quarters of its 2006 fiscal year, and for the first quarter of
its 2007 fiscal year, and other information and documents required to be delivered under the Credit
Documents in connection with such reports or such financial statements.
3. Agreements. (a) The Company agrees that prior to its filing of the 2006 Form 10-K
and each Specified Form 10-Q, it shall compute the Borrowing Base and prepare Borrowing Base
Certificates in a manner that is consistent with the treatment of the Updated Specified Matters (as
defined in the waiver among the parties hereto dated as of June 16, 2006 (the “Second
Waiver”)) in the Borrowing Base Certificate dated April 30, 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 (as defined in the Second Waiver) at the time) as shall be reasonably satisfactory to the
Administrative Agent.
(b) The Company agrees to deliver to the Administrative Agent for prompt
distribution to each Lender as soon as available, and in any event within 35 days after the end of
each fiscal month of the Company, management financial reports of the Company setting forth (i) a
consolidated balance sheet and consolidated statements of income and operations and (ii)
calculations demonstrating compliance with Section 6.07 of the Credit Agreement (including
calculations of Consolidated EBITDAR and Consolidated EBITDA (which shall be Consolidated EBITDAR
net of Consolidated Lease Expense), with any such financial statements to be prepared in a manner
materially consistent with the Company’s past practices (unless otherwise required to conform with
the results of the audit or changes in GAAP) and, to the extent relevant, on the basis of
management’s good faith efforts, in such form and detail reasonably satisfactory to the
Administrative Agent. The Lenders acknowledge that such management financial reports are not final
and are subject to change in connection with the preparation of the 2006 Form 10-K or the Specified
Form 10-Qs.
(c) The Company agrees that (i) it shall not permit, as of the end of any fiscal quarter
ending prior to the Financial Statement Waiver Termination Date, the Fixed Charge Coverage Ratio to
be less than 1.00 to 1.00, and (ii) any non-compliance with this Section 3(c) shall be an Event of
Default under Article VII(c) of the Credit Agreement.
(d) The Company agrees that it will not borrow under the Commitments in order to repurchase,
redeem or pay or prepay the principal of any of the 63/4% Notes or any loans under the Term Facility
(as defined in the Second Waiver) (other than scheduled interim installments of such loans).
(e) The Company agrees that in consideration for the Lenders executing this Waiver, it shall
pay a fee (the “Waiver Fee”) for the account of each Lender that executed and delivered the
Waiver on or prior to 12:00 p.m. (New York City time) on Friday, June 8, 2007 (or such later time
as the Company and the Administrative Agent shall agree) in an amount equal to 0.05% of such
Lender’s Commitment. The Waiver Fee shall be earned upon the effective date of this Waiver and
shall be payable on July 2, 2007, provided that, if the Company files either a Form 8K attaching
draft financial statements for the fiscal year ended February 4, 2007 or the 2006 Form 10-K with
the Securities and Exchange Commission on, or prior to, June 30, 2007 the Waiver Fee shall be
reduced to 0.00% and shall not be payable.
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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. Acknowledgement of Guarantors. The Guarantors acknowledge and consent to all of
the terms and conditions of this Waiver and agree that this Waiver and all documents executed in
connection herewith do not operate to reduce or discharge the Guarantors’ obligations under the
Credit Agreement or the other Credit Documents. The Guarantors further acknowledge and agree that
the Guarantors have no claims, counterclaims, offsets, or defenses to the Credit Documents and the
performance of the Guarantors’ obligations thereunder or if the Guarantors did have any such
claims, counterclaims, offsets or defenses to the Credit Documents or any transaction related to
the Credit Documents, the same are hereby waived, relinquished and released in consideration of
execution and delivery of this Waiver.
6. Continuing Effect; No Other Waiver. Except as expressly set forth in this Waiver,
all of the terms and provisions of the Credit Documents are ratified and confirmed, and 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. The
Company acknowledges and agrees that nothing in this Waiver shall constitute an indication of the
Lenders’ willingness to consent to any other amendment or waiver of any other provision of the
Credit Agreement or a waiver of any Default or Event of Default not referenced in this Waiver or
for any other time period. The parties hereto agree that this Waiver supersedes and replaces the
Second Waiver (other than Sections 2(b) and (c) thereof which survive in accordance with their
terms).
7. 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.
8. Credit Document. This Waiver is a Credit Document executed pursuant to the Credit
Agreement and shall (unless otherwise expressly indicated herein) be construed, administered and
applied in accordance with the terms and provisions of the Credit Agreement.
9. 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 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.
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10. 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. |
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| By | /s/ XXXXX X. XXXXX | |||
| Name: | Xxxxx X. Xxxxx | |||
| Title: | Senior VP — CFO | |||
| CSK AUTO CORPORATION CSK XXXX.XXX |
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| By | /s/ XXXXX X. XXXXX | |||
| Name: | Xxxxx X. Xxxxx | |||
| Title: | Senior VP — CFO | |||
Signature page to CSK Auto, Inc., Third Waiver
| JPMORGAN CHASE BANK, N.A. as Administrative Agent and a Lender |
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| By | /s/ XXXXX XXXXXXX | |||
| Name: | Xxxxx Xxxxxxx | |||
| Title: | Managing Director | |||
Signature page to CSK Auto, Inc., Third Waiver
| ALLIED IRISH BANKS, PLC |
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| By | /s/ XXXXXX XXXXX | |||
| Name: | Xxxxxx Xxxxx | |||
| Title: | VP | |||
| By | /s/ XXX XXXXX | |||
| Name: | Xxx Xxxxx | |||
| Title: | AVP | |||
Signature page to CSK Auto, Inc., Third Waiver
| BANK OF AMERICA, N.A. |
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| By | /s/ XXXXX X. XXXXXX | |||
| Name: | Xxxxx X. Xxxxxx | |||
| Title: | Senior Vice President | |||
Signature page to CSK Auto, Inc., Third Waiver
| THE CIT GROUP/BUSINESS CREDIT, INC., as a Lender |
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| By | /s/ XXXX XXXX | |||
| Name: | Xxxx Xxxx | |||
| Title: | Vice President | |||
Signature page to CSK Auto, Inc., Third Waiver
| ING Capital LLC |
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| By | /s/ XXXXXXXXX XXXXXXXX | |||
| Name: | Xxxxxxxxx Xxxxxxxx | |||
| Title: | Vice President | |||
Signature page to CSK Auto, Inc., Third Waiver
| XXXXXX COMMERCIAL PAPER INC. |
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| By | /s/ XXXXX XXXXXX | |||
| Name: | Xxxxx Xxxxxx | |||
| Title: | Authorized Signatory | |||
Signature page to CSK Auto, Inc., Third Waiver
| NATIONAL CITY BUSINESS CREDIT, INC. |
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| By | /s/ XXXXXX XXXXXX | |||
| Name: | Xxxxxx Xxxxxx | |||
| Title: | Director | |||
Signature page to CSK Auto, Inc., Third Waiver
| UBS LOAN FINANCE LLC |
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| By | /s/ XXXXX X. XXXXX | |||
| Name: | Xxxxx X. Xxxxx | |||
| Title: | Associate Director, Banking Products Services, US |
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| By | /s/ XXXX X. XXXXX | |||
| Name: | Xxxx X. Xxxxx | |||
| Title: | Associate Director, Banking Products Services, US |
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Signature page to CSK Auto, Inc., Third Waiver
| UPS CAPITAL CORPORATION |
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| By | /s/ XXXX X. XXXXXXXX | |||
| Name: | Xxxx X. Xxxxxxxx | |||
| Title: | Director, Portfolio Management | |||
Signature page to CSK Auto, Inc., Third Waiver
| U.S. BANK N.A. |
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| By | /s/ XXXXXXX X. XXXXXXX | |||
| Name: | XXXXXXX X. XXXXXXX | |||
| Title: | Vice President U.S. Bank, N.A. |
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Signature page to CSK Auto, Inc., Third Waiver
| Wachovia Bank, National Association |
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| By | /s/ XXXX XXXXX | |||
| Name: | Xxxx Xxxxx | |||
| Title: | Vice President | |||
Signature page to CSK Auto, Inc., Third Waiver
