EXHIBIT 10.3
EXECUTION COPY
AMENDMENT AND WAIVER
AMENDMENT AND WAIVER, dated as of August 2, 2000 (this "Amendment"),
to the Amended and Restated Credit Agreement, dated as of March 6, 1998 (as
amended, supplemented or otherwise modified from time to time, the "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:
- - - - - - - - - -
WHEREAS, the Borrower, the Lenders and the Agent are parties to the
Agreement; and
WHEREAS, the Borrower has requested that the Lenders agree to amend
or waive certain negative covenants and other provisions contained in the
Agreement, and the Lenders and the Agent 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 Lenders and the Agent hereby
agree as follows:
1. Definitions. All terms defined in the Agreement shall have such
defined meanings when used herein unless otherwise defined herein.
2. Amendment of Subsection 1.1. (a) The definition of "Consolidated
EBITDA" in subsection 1.1 of the Agreement is hereby amended by (i) deleting the
word "and" appearing at the end of clause (f) thereof and substituting therefor
a comma, (ii) replacing the period at the end of clause (g) thereof with the
phrase ", and" and (iii) adding at the end of such definition the following:
"(h) for any calculation of Consolidated EBITDA for the purpose of
determining compliance with subsections 8.1(a) or 8.1(b), and for
the purpose of determining the Applicable Margin, in each case for
any test period that includes the fiscal quarter ended June 30,
2000, the estimated loss on disposal of discontinued operations of
up to $115,000,000 reflected in the financial statement of the
fiscal quarter ended June 30, 2000; provided that for the purpose of
determining compliance with subsections 8.1(a) or 8.1(b), and for
the purpose of determining the Applicable Margin, (i) Consolidated
EBITDA for any test period that includes the fiscal quarter ending
September 30, 2000 shall be determined on a pro forma basis as if
the Distribution Group had been sold at the beginning of the period,
and (ii) the EBITDA loss excluded on such pro forma basis as
attributable to the Distribution Group shall not exceed what was set
forth in the estimated
compliance calculations provided to the Lenders on July 28, 2000;
provided, further, that the foregoing pro forma adjustments shall
not be made if the Distribution Group has not been sold, and the
Loans prepaid with the net proceeds thereof, prior to October 31,
2000."
(b) The definition of "Consolidated Interest Expense" in subsection
1.1 of the Agreement is hereby amended by adding at the end thereof, immediately
before the period, the following proviso:
"provided that for the purposes of determining compliance with
subsection 8.1(b) for any test period that includes the fiscal
quarter ending September 30, 2000, the Consolidated Interest Expense
of the Borrower shall be determined on a pro forma basis as if the
Distribution Group had been sold at the beginning of the period and
as if the net proceeds thereof had been applied to prepay Loans,
provided, further, that the foregoing pro forma adjustment shall not
be made if the Distribution Group has not been sold, and the Loans
prepaid with the net proceeds, prior to October 31, 2000."
(c) The definition of "Consolidated Net Worth" in subsection 1.1 of
the Agreement is hereby amended by adding at the end of such definition,
immediately before the period, the following proviso:
"provided that for the purpose of determining compliance with
subsection 8.1(c) there shall be excluded from the calculation of
Consolidated Net Worth on any date the effect of the estimated loss
on disposal of discontinued operations of up to $115,000,000
reflected in the financial statement of the fiscal quarter ended
June 30, 2000"
(d) The definition of "Leverage Ratio" in subsection 1.1 of the
Agreement is hereby amended by adding at the end of such definition, immediately
before the period, the following new proviso:
"and provided, further, that solely for the purpose of calculating
the Leverage Ratio to determine compliance under subsection 8.1(a),
Consolidated Total Indebtedness as of September 30, 2000 shall be
determined on a pro forma basis as if the Distribution Group had
been sold, and the Loans prepaid with the net proceeds thereof, as
of September 30, 2000; and provided, further, that the foregoing pro
forma adjustment shall not be made if the Distribution Group has not
been sold, and the Loans prepaid with the net proceeds, prior to
October 31, 2000."
(e) Subsection 1.1 of the Agreement is hereby amended by adding the
following new definition in appropriate alphabetical order:
""Distribution Group": ATC Distribution Group, Inc."
3. Waiver of Subsection 8.1(a). The requirements of Subsection
8.1(a) of the Agreement are hereby waived to the extent, and only to the extent,
that the Leverage Ratio on the
last day of the Borrower's fiscal quarter ended June 30, 2000 exceeded 3.75 to
1.00, provided that the Leverage Ratio as of such date does not exceed 4.25 to
1.00.
4. Waiver of Subsection 8.1(b). The requirements of Subsection
8.1(b) of the Agreement are hereby waived to the extent, and only to the extent,
that the interest coverage ratio calculated in accordance with Section 8.1(b) of
the Agreement for the period of four consecutive fiscal quarters ended June 30,
2000 was less than 2.30 to 1.00, provided that such ratio for such period is not
less than 2.00 to 1.00.
5. Representations; No Default. On and as of the date hereof, and
after giving effect to this Amendment, the Borrower confirms, reaffirms and
restates that the representations and warranties set forth in Section 5 of the
Agreement and in the other Loan Documents are true and correct in all material
respects, provided that the references to the Agreement therein shall be deemed
to be references to this Amendment and to the Agreement as amended by this
Amendment.
6. Conditions to Effectiveness. This Amendment shall become
effective on and as of the date that the Agent shall have received:
(a) counterparts of this Amendment, duly executed and delivered by a
duly authorized officer of each of the Borrower, the Agent, and the Required
Lenders, along with the written consent of each Subsidiary Guarantor in the form
attached hereto;
(b) an executed certificate of an officer of the Borrower in form
satisfactory to the Agent as to the accuracy of the Borrower's representations
and warranties set forth in Section 5 of the Agreement and in the other Loan
Documents, the absence of any Default or Event of Default after giving effect to
this Amendment, and as to such other customary matters as the Agent may
reasonably request; and
(c) an amendment fee for the account of each Lender executing this
Amendment and delivering its executed signature page to the Agent prior to 5pm,
New York City time, on August 2, 2000 in the amount equal to 0.075% of the sum
of such Lender's Aggregate Outstanding Extensions of Credit and its unutilized
Commitments as of such date.
7. Limited Waiver and Amendment. Except as expressly amended herein,
the Agreement shall continue to be, and shall remain, in full force and effect.
This Amendment 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 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
Agreement or any of the instruments or agreements referred to therein, as the
same may be amended from time to time.
8. Costs and Expenses. The Borrower agrees to pay or reimburse the
Agent for all its reasonable and customary out-of-pocket costs and expenses
incurred in connection with the preparation, negotiation and execution of this
Amendment, and the consummation of the transactions contemplated hereby,
including, without limitation, the reasonable fees and disbursements of its
counsel.
9. Counterparts. This Amendment 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.
10. GOVERNING LAW. THIS AMENDMENT 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 to
be executed and delivered by their respective duly authorized officers as of the
date first above written.
AFTERMARKET TECHNOLOGY CORP.
By: /s/ Joseph Salamunovich
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Name: Joseph Salamunovich
Title: Vice President and Secretary
THE CHASE MANHATTAN BANK, as Agent
and as a Lender
By: /s/ Julie S. Long
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Name: Julie S. Long
Title: Vice President
BANK OF AMERICA NATIONAL
ASSOCIATION
By: /s/ Gregory Mojica
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Name: Gregory Mojica
Title: Senior Vice President
THE BANK OF NOVA SCOTIA
By: /s/ F.C.H. Ashby
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Name: F.C.H. Ashby
Title: Senior Manager Loan Operations
BANK ONE N.A.
By: /s/ Mark L. McClure
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Name: Mark L. McClure
Title: First Vice President
FIRST UNION NATIONAL BANK
By: /s/ Andrew Payne
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Name: Andrew Payne
Title: Vice President
HARRIS TRUST AND SAVINGS BANK
By: /s/ Keith J. Niebrugge
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Name: Keith J. Niebrugge
Title: Vice President
LASALLE BANK NATIONAL ASSOCIATION
By: /s/ James J. Hess
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Name: James J. Hess
Title: Vice President
NATIONAL CITY BANK
By: /s/ Matthew R. Klinger
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Name: Matthew R. Klinger
Title: Vice President
BANK OF NEW YORK
By: /s/ John M. Lokay, Jr.
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Name: John M. Lokay, Jr.
Title: Vice President
CREDIT AGRICOLE INDOSUEZ
By: /s/ Sarah U. Johnston
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Name: Sarah U. Johnson
Title: Senior Relationship Manager
By: /s/ Richard A. Drennan
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Name: Richard A. Drennan
Title: Senior Relationship Manager
CONSENT
Each of the undersigned Guarantors hereby consents and agrees to the
provisions of the foregoing Amendment, and hereby affirms that upon the
effectiveness of the foregoing Amendment, each Loan Document to which it is a
party shall continue to be, and shall remain, in full force and effect.
AFTERMARKET TECHNOLOGY CORP.
By: /s/ Joseph Salamunovich
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Name: Joseph Salamunovich
Title: Vice President and Secretary
AARON'S AUTOMOTIVE PRODUCTS, INC.
By: /s/ Joseph Salamunovich
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Name: Joseph Salamunovich
Title: Vice President
ACI ELECTRONICS HOLDING CORP.
By: /s/ Joseph Salamunovich
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Name: Joseph Salamunovich
Title: Vice President
ACI ELECTRONICS INVESTMENT CORP.
By: /s/ Joseph Salamunovich
------------------------------
Name: Joseph Salamunovich
Title: Vice President
ATC ELECTRONICS & LOGISTICS, L.P.
By: ACI ELECTRONICS HOLDING
CORP., its General Partner
By: /s/ Joseph Salamunovich
------------------------
Name: Joseph Salamunovich
Title: Vice President
ATC DISTRIBUTION GROUP, INC.
By: /s/ Joseph Salamunovich
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Name: Joseph Salamunovich
Title: Vice President
ATS REMANUFACTURING, INC.
By: /s/ Joseph Salamunovich
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Name: Joseph Salamunovich
Title: Vice President
COMPONENT REMANUFACTURING
SPECIALISTS, INC.
By: /s/ Joseph Salamunovich
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Name: Joseph Salamunovich
Title: Vice President
AUTOCRAFT REMANUFACTURING CORP.
By: /s/ Joseph Salamunovich
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Name: Joseph Salamunovich
Title: Vice President
AUTOCRAFT INDUSTRIES, INC.
By: /s/ Joseph Salamunovich
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Name: Joseph Salamunovich
Title: Vice President