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EXECUTION COPY
AMENDMENT NO. 3
AMENDMENT NO. 3, dated as of June 27, 2001 (this "Amendment"),
to the Third Amended and Restated Credit Agreement, dated as of September 30,
1999 (as amended by Amendment No. 1, dated as of February 17, 2000, and
Amendment No. 2, dated as of December 4, 2000, collectively the "Credit
Agreement"), among CSK AUTO, INC. (the "Company"), the several lenders from time
to time parties to the Credit Agreement (the "Lenders"), THE CHASE MANHATTAN
BANK, as administrative agent for the Lenders (in such capacity, the
"Administrative Agent"), CREDIT SUISSE FIRST BOSTON, as syndication agent for
the Lenders (the "Syndication Agent") and LEHMAN COMMERCIAL PAPER INC., as
documentation agent for the Lenders (in such capacity, the "Documentation
Agent").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Company has requested that the Lenders consent to
amend certain provisions of the Credit Agreement, including to provide for the
making of Tranche B-3 Term Loans in an aggregate principal amount of
$27,000,000; and
WHEREAS, the Lenders are willing to consent to the requested
amendment on and subject to the terms and conditions contained herein.
NOW, THEREFORE, in consideration of the foregoing premises and
for other good and valuable consideration the receipt and sufficiency of which
is hereby acknowledged, the parties hereto agree as follows:
1. Definitions. Unless otherwise defined herein, terms in the
Credit Agreement are used herein as therein defined.
2. Amendments to the Credit Agreement.
(a) Amendments to Subsection 1.1 (Defined Terms). (i)
Subsection 1.1 is hereby amended by adding the following new definitions in the
appropriate alphabetical order:
"Amendment No. 3": the Amendment No. 3 to this
Agreement dated as of June 27, 2001.
"Third Amendment Effective Date": the date on which
each of the conditions precedent contained in Section 4 of Amendment
No. 3 are satisfied or waived.
"Tranche B-3 Lender": at any time, any Lender with a
Tranche B-3 Term Loan Commitment or a Tranche B-3 Term Loan.
"Tranche B-3 Maturity Date": October 31, 2002.
"Tranche B-3 Note": as defined in subsection 4.13(e).
"Tranche B-3 Term Loan Commitment": as to any Tranche
B-3 Lender, its obligation to make a Tranche B-3 Term Loan to the
Company pursuant to Section 2.1
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in an aggregate amount not to exceed the amount set forth under such
Tranche B-3 Lender's name in Schedule I-A opposite the caption "Tranche
B-3 Term Loan Commitment" or in Schedule 1 to the Assignment and
Acceptance pursuant to which a Tranche B-3 Lender acquires its Tranche
B-3 Term Loan Commitment, as the same may be adjusted pursuant to
subsection 11.6(c); collectively, as to all the Tranche B-3 Lenders,
the "Tranche B-3 Term Loan Commitments". The original aggregate
principal amount of the Tranche B-3 Term Loan Commitments is
$27,000,000.
"Tranche B-3 Term Loan Commitment Percentage": as to
any Tranche B-3 Lender at any time, the percentage of the aggregate
Tranche B-3 Term Loan Commitments then constituted by such Lender's
Tranche B-3 Term Loan Commitment.
"Tranche B-3 Term Loans": as defined in subsection
2.1.
(ii) Subsection 1.1 is hereby further amended by deleting the
following definitions in their entirety and substituting in lieu thereof, the
following:
"Class": (a) as to any Loan, its designation as a
Tranche B Term Loan, Tranche B-1 Term Loan, Tranche B-2 Term Loan,
Tranche B-3 Term Loan or Revolving Credit Loan and (b) as to any
Commitment, its designation as a Tranche B Term Loan Commitment,
Tranche B-1 Term Loan Commitment, Tranche B-2 Term Loan Commitment,
Tranche B-3 Term Loan or Revolving Credit Commitment.
"Commitment": as to any Lender at any time, such
Lender's Swing Line Commitment, Tranche B Term Loan Commitment, Tranche
B-1 Term Loan Commitment, Tranche B-2 Term Loan Commitment, Tranche B-3
Term Loan Commitment and Revolving Credit Commitment; collectively, as
to all the Lenders, the "Commitments".
"Commitment Percentage": as to any Lender at any
time, its Tranche B Term Loan Commitment Percentage, Tranche B-1 Term
Loan Commitment Percentage, Tranche B-2 Term Loan Commitment
Percentage, Tranche B-3 Term Loan Commitment Percentage or Revolving
Credit Commitment Percentage, as the context may require.
"Term Loan Commitments": the collective reference to
Tranche B Term Loan Commitments, the Tranche B-1 Term Loan Commitments,
the Tranche B-2 Term Loan Commitments and the Tranche B-3 Term Loan
Commitments.
"Term Loan Lenders": the collective reference to each
Tranche B Lender, Tranche B-1 Lender, Tranche B-2 Lender and Tranche
B-3 Lender.
(b) Amendment to Subsection 2.1 (Term Loans). Subsection 2.1
is hereby amended by deleting it in its entirety and substituting in lieu
thereof the following:
"Each Tranche B Lender holds a loan in Dollars
(individually, a "Tranche B Term Loan"; and collectively, the "Tranche
B Term Loans") to the Company on the Closing Date in an aggregate
principal amount as set forth under such Lender's name in Schedule I
opposite the caption "Tranche B Term Loan" and each Tranche B-1 Lender
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holds a loan in Dollars (individually, a "Tranche B-1 Term Loan"; and
collectively, the "Tranche B-1 Term Loans") to the Company on the
Closing Date in an aggregate principal amount as set forth under such
Lender's name in Schedule I opposite the caption "Tranche B-1 Term
Loan." Subject to the terms and conditions hereof, each Tranche B-2
Lender severally agrees to make a loan in Dollars (individually, a
"Tranche B-2 Term Loan"; and collectively, the "Tranche B-2 Term
Loans") to the Company on the Closing Date, in an aggregate principal
amount equal to such Lender's Tranche B-2 Term Loan Commitment and each
Tranche B-3 Lender severally agrees to make a loan in Dollars
(individually, a "Tranche B-3 Term Loan"; and collectively, the
"Tranche B-3 Term Loans"; Tranche B-3 Term Loans, together with Tranche
B Term Loans, Tranche B-1 Term Loans and Tranche B-2 Term Loans,
collectively, the "Term Loans") to the Company on the Third Amendment
Effective Date, in an aggregate principal amount equal to such Lender's
Tranche B-3 Term Loan Commitment."
(c) Amendment to Subsection 2.3 (Use of Proceeds). Subsection
2.3 is hereby amended by adding the sentence "The proceeds of the Tranche B-3
Term Loans will be used for working capital and other general corporate purposes
of the Company and its Subsidiaries." at the end of said subsection.
(d) Amendment to Subsection 4.1 (Procedure for Borrowing).
Subsection 4.1(a) is hereby amended by adding the phrase "a Tranche B-3 Term
Loan (with respect to Loans made on the Third Amendment Effective Date),"
immediately after the parenthetical phrase "(with respect to Loans made on the
Closing Date)" in said subsection.
(e) Amendment to Subsection 4.2 (Conversion and Continuation
Options). Subsection 4.2 is hereby amended by adding the thereto the following
new subsection (d):
"(d) Notwithstanding anything in this Agreement to
the contrary, unless otherwise agreed to by the Administrative Agent,
no Tranche B-3 Term Loan shall be made as, converted to or continued as
a Eurodollar Loan during the period commencing on the Third Amendment
Effective Date and ending on the 33rd day following the Third Amendment
Effective Date; provided that all or a portion of the Tranche B-3 Term
Loans made on the Third Amendment Effective Date may, at the Company's
option, subject to the other provisions of this Agreement, be converted
to Eurodollar Loans with an Interest Period of one month on or after
the third day following the Third Amendment Effective Date.
(f) Amendments to Subsection 4.4 (Optional and Mandatory
Prepayments; Repayments of Term Loans). Subsection 4.4 is hereby amended as
follows:
(i) Subsection 4.4(a) is hereby amended by deleting it in its
entirety and substituting in lieu thereof the following:
"(a) Subject to Subsection 4.12, the Company may at
any time and from time to time prepay Loans, in whole or in part,
without premium or penalty, upon at least one Business Day's (or, in
the case of Swing Line Loans, by 2:00 p.m., New York City time, on the
same Business Day) irrevocable notice to the Administrative Agent in
the
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case of Alternate Base Rate Loans, and three Business Days' irrevocable
notice to the Administrative Agent in the case of Eurodollar Loans,
specifying the date and amount of prepayment and whether the prepayment
is of Revolving Credit Loans, Tranche B Term Loans, Tranche B-1 Term
Loans, Tranche B-2 Term Loans or Tranche B-3 Term Loans. Upon receipt
of such notice the Administrative Agent shall promptly notify each
Lender thereof. If such notice is given, the Company shall make such
prepayment, and the payment amount specified in such notice shall be
due and payable, on the date specified therein. Partial prepayments (i)
of Term Loans shall be in an aggregate principal amount equal to the
lesser of (A) (I) $2,000,000, or a whole multiple of $1,000,000 in
excess thereof with respect to Eurodollar Loans or (II) $1,000,000, or
a whole multiple of $100,000 in excess thereof with respect to
Alternate Base Rate Loans and (B) the aggregate unpaid principal amount
of the Term Loans and (ii) of Revolving Credit Loans shall be in an
aggregate principal amount equal to the lesser of (A) (I) $2,000,000 or
a whole multiple of $1,000,000 in excess thereof with respect to
Eurodollar Loans or (II) $1,000,000, or a whole multiple of $100,000 in
excess thereof with respect to Alternate Base Rate Loans and (B) the
aggregate unpaid principal amount of the Revolving Credit Loans, as the
case may be. Prepayments of the Term Loans pursuant to this subsection
4.4(a) shall be applied to the remaining installments of each of the
Tranche B Term Loans, Tranche B-1 Term Loans, Tranche B-2 Term Loans
and Tranche B-3 Term Loans ratably according to the amounts of such
installments."
(ii) Subsection 4.4(c) is hereby amended by adding thereto the
following new subsection (iv):
"(iv) The aggregate outstanding principal of the
Tranche B-3 Term Loans shall be repaid on the Tranche B-3 Maturity
Date."
(g) Amendment to Subsection 4.9 (Pro Rata Treatment and
Payments). Subsection 4.9(a) is hereby amended by (x) deleting the word "and" at
the end of clause (ii) of said subsection and substituting in lieu thereof a
comma and (y) adding the following phrase to the end of clause (iii) immediately
before the period:
"and (iv) the Tranche B-3 Term Loans shall be made
pro rata according to the respective outstanding principal amounts of
the Tranche B-3 Term Loans then held by the Tranche B-3 Lenders."
(h) Amendments to Subsection 4.13 (Repayment of Loans;
Evidence of Debt). Section 4.13 is hereby amended as follows:
(i) Subsection 4.13(a) is hereby amended by deleting it in its
entirety and substituting in lieu thereof the following:
"(a) The Company hereby unconditionally promises to
pay to the Administrative Agent for the account of each Lender (i) the
then unpaid principal amount of each Revolving Credit Loan of such
Lender on the Revolving Credit Termination Date, (ii) the principal
amount of the Term Loan of such Lender, in nine consecutive
installments with respect to the Tranche B Term Loans and the Tranche
B-1 Term Loans
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and eight consecutive installments with respect to Tranche B-2 Term
Loans, payable on each Installment Payment Date (or the then unpaid
principal amount of such Term Loan, on the date that the Term Loans
become due and payable pursuant to Section 9) and on the Maturity Date,
and, in the case of Tranche B-3 Term Loans, on the Tranche B-3 Maturity
Date and (iii) the then unpaid principal amount of the Swing Line Loans
of the Swing Line Lender on the Revolving Credit Termination Date. The
Company hereby further agrees to pay interest on the unpaid principal
amount of the Loans from time to time outstanding from the date hereof
until payment in full thereof at the rates per annum, and on the dates,
set forth in subsection 4.5."
(ii) Subsection 4.13(c) is hereby amended by deleting it in
its entirety and substituting in lieu thereof the following:
"(c) The Administrative Agent shall maintain the
Register pursuant to subsection 11.6(d), and a subaccount therein for
each Lender, in which shall be recorded (i) the amount of each
Revolving Credit Loan, Tranche B Term Loan, Tranche B-1 Term Loan,
Tranche B-2 Term Loan and Tranche B-3 Term Loan made hereunder, the
Type thereof and each Interest Period applicable thereto, (ii) the
amount of any principal or interest due and payable or to become due
and payable from the Company to each Lender hereunder and (iii) both
the amount of any sum received by the Administrative Agent hereunder
from the Company and each Lender's share thereof."
(iii) Subsection 4.13(e) is hereby amended by deleting it in
its entirety and substituting in lieu thereof the following:
"(e) The Company agrees that, upon the request to the
Administrative Agent by any Lender and receipt by the Company of any
notes issued to such Lender under the Existing Credit Agreement, the
Company will execute and deliver to such Lender (i) a promissory note
of the Company evidencing the Revolving Credit Loans of such Lender,
substantially in the form of Exhibit A with appropriate insertions as
to date and principal amount (a "Revolving Credit Note"), and/or (ii) a
promissory note of the Company evidencing the Tranche B Term Loan of
such Lender, substantially in the form of Exhibit B with appropriate
insertions as to date and principal amount (a "Tranche B Note"), and/or
(iii) a promissory note of the Company evidencing the Tranche B-1 Term
Loan of such Lender, substantially in the form of Exhibit B-1 with
appropriate insertions as to date and principal amount (a "Tranche B-1
Note") and/or (iv) a promissory note of the Company evidencing the
Tranche B-2 Term Loan of such Lender, substantially in the form of
Exhibit B-2 with appropriate insertions as to date and principal amount
(a "Tranche B-2 Note"), and/or (v) a promissory note of the Company
evidencing the Tranche B-3 Term Loan of such Lender, substantially in
the form of Exhibit B-3 with appropriate insertions as to date and
principal amount (a "Tranche B-3 Note"; each Tranche B Note, Tranche
B-1 Note, Tranche B-2 Note and Tranche B-3 Note, a "Term Loan Note",
and collectively, the "Term Loan Notes"), and/or (vi) in the case of
the Swing Line Lender, a promissory note of the Company evidencing the
Swing Line Loans of the Swing Line Lender, substantially in the form of
Exhibit C with appropriate insertions as to date and principal amount
(the "Swing Line Note")."
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(i) Amendment to Subsection 7.1 (Financial Statements).
Subsection 7.1 is hereby amended as follows:
(i) By adding the following new paragraph (d) immediately
following paragraph (c) thereof:
"(d) as soon as available, but in any event not later
than 35 days after the end of each fiscal month of the Company
(beginning with the period ending July 8, 2001 but excluding any fiscal
month which ends a fiscal year or fiscal quarter of the Company), a
report of sales and EBITDA for such fiscal month, an unaudited
consolidated balance sheet of the Company and its Subsidiaries as at
the end of such fiscal month and a management discussion and analysis
of the results for such fiscal month."
(ii) By deleting the language "paragraphs (b) and (c)" in the
last parenthetical of subsection 7.1 and substituting the following language in
lieu thereof:
"paragraphs (b), (c) and (d)".
(j) Amendment to Subsection 8.1 (Indebtedness). Subsection 8.1
is hereby amended as follows:
(i) Subsection 8.1(f) is hereby amended by deleting it in its
entirety and substituting in lieu thereof the following:
"(f) Indebtedness of the Company and its Subsidiaries
in aggregate principal amount not to exceed at any one time outstanding
$30,000,000;"
(ii) Subsection 8.1(j) is hereby amended by deleting it in its
entirety and substituting in lieu thereof the following:
"(j) subordinated Indebtedness in aggregate principal
amount not to exceed at any one time outstanding $25,000,000 plus any
additional principal amount of such subordinated Indebtedness issued in
lieu of cash interest thereon (and any refinancing thereof shall be
permitted in the amount of such sum), which subordinated Indebtedness
(i) is subordinated to the Indebtedness hereunder on terms not less
favorable to the Lenders than the subordination provisions of the
Permanent Subordinated Debt and (ii) has a maturity date after the
Maturity Date."
(k) Amendment to Subsection 8.9 (Debt to EBITDA). Subsection
8.9(a) is hereby amended by deleting the portion of the table therein covering
the following periods and substituting in lieu thereof the following:
Fiscal Year Fiscal Quarter Ratio
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2001 Second 4.75 to 1
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Third 4.50 to 1
Fourth and each
fiscal quarter
thereafter 3.75 to 1
(l) Amendment to Subsection 8.10 (Interest Coverage).
Subsection 8.10 is hereby amended by deleting the portion of the table therein
covering the following periods and substituting in lieu thereof the following:
Interest
Coverage
Fiscal Year Fiscal Quarter Period
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2001 Second 2.25 to 1
Third 2.35 to 1
Fourth and
each fiscal quarter
thereafter 2.75 to 1
(m) Amendment to Subsection 11.2 (Notices). Subsection 11.2 is
hereby amended by deleting the lead-in sentence of said section in its entirety
and substituting in lieu thereof the following words:
"All notices, requests and demands to or upon the
respective parties hereto to be effective shall be in writing
(including by telecopy or telex, if one is listed), and, unless
otherwise expressly provided herein, shall be deemed to have been duly
given or made when delivered by hand, or three Business Days after
being deposited in the mail, postage prepaid, or, in the case of
telecopy notice, when sent, confirmation of receipt received, or, in
the case of telex notice, when sent, answerback received, addressed as
follows in the case of the Company and the Administrative Agent and as
set forth in Schedule I-A in the case of any Tranche B-3 Lender and
Schedule I in the case of any other Lender, or to such other address as
may be hereafter notified by the respective parties hereto and any
future holders of the Notes:"
(n) Addition of Schedule I-A. Schedule I-A is hereby added to
the Credit Agreement such that it reads in its entirety as set forth on Schedule
A hereto.
(o) Addition of Exhibit B-3. Exhibit B-3 is hereby added to
the Credit Agreement such that it reads in its entirety as set forth on Exhibit
A attached hereto.
3. Representations and Warranties. To induce the
Administrative Agent and the Lenders parties thereto to enter into this
Amendment, the Company hereby represents and
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warrants to the Administrative Agent and the Lenders as of the Third Amendment
Effective Date that:
(a) The Company has the corporate power and authority to make
and deliver this Amendment, to borrow the Tranche B-3 Term Loans, and to perform
the Credit Documents to which it is a party, as amended by this Amendment, and
has taken all necessary corporate action to authorize the execution, delivery
and performance of this Amendment and the performance of the Credit Documents,
as so amended.
(b) No consent or authorization of, or filing with, any Person
(including, without limitation, any Governmental Authority) is required in
connection with the execution and delivery of the Company of this Amendment, the
borrowing of the Tranche B-3 Term Loans, or for the performance, validity or
enforceability against the Company, of this Amendment or the Credit Documents to
which it is a party, as amended by this Amendment, except for consents,
authorizations and filings which have been obtained or made and are in full
force and effect.
(c) This Amendment has been duly executed and delivered by the
Company.
(d) This Amendment and each Credit Document to which the
Company is a party, as amended by this Amendment, constitutes a legal, valid and
binding obligation of the Company, enforceable against the Company in accordance
with its terms, except as may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' rights generally
and by principals of equity (regardless of whether enforcement is sought in a
proceeding in equity or at law).
(e) The execution, delivery and performance of this Amendment
and the performance of the Credit Documents to which the Company is a party, as
amended by this Amendment, and the borrowing of the Tranche B-3 Term Loans (i)
will not violate any Requirement of Law or any Contractual Obligation applicable
to or binding upon the Company or any Subsidiary of the Company or any of their
respective properties or assets, in a manner which, individually or in the
aggregate, (x) would have a material adverse effect on the ability of the
Company or such Subsidiary to perform its obligations under the Credit
Documents, as amended by this Amendment, (y) would give rise to any liability on
the part of the Administrative Agent or any Lender or (z) would have a material
adverse effect on the business, assets, condition (financial or otherwise) or
results of operations of the Company and its Subsidiaries, taken as a whole, and
(ii) will not result in the creation or imposition of any Lien on any of its
properties or assets pursuant to any Requirement of Law applicable to it, as the
case may be, or any of its Contractual Obligations, except for Liens arising
under the Security Documents.
(f) The consolidated balance sheet of the Company and its
consolidated Subsidiaries as at February 4, 2001 and the related consolidated
statement of operations for the fiscal year ended on such date, audited by
PricewaterhouseCoopers LLP, a copy of which has heretofore been furnished to
each Lender, present fairly in accordance with GAAP the consolidated financial
condition of the Company and its consolidated Subsidiaries as at such date, and
the consolidated results of their operations and their consolidated cash flows
for the fiscal period then ended. All such financial statements have been
prepared in accordance with
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GAAP applied consistently throughout the periods involved (except as approved by
such accountants and as disclosed therein). Neither the Company nor any of its
consolidated Subsidiaries had, at the date of the most recent balance sheet
referred to above, any material Contingent Obligation, contingent liability or
liability for taxes, or any long-term lease or unusual forward or long-term
commitment, including, without limitation, any material interest rate or foreign
currency swap or exchange transaction, which is not reflected in the foregoing
statements or in the notes thereto or expressly permitted to be incurred
hereunder.
(g) Since February 4, 2001, (a) there has been no change, and
(as of the Third Amendment Effective Date only) no development or event, which
has had or could reasonably be expected to have a material adverse effect on the
business, assets, condition (financial or otherwise) or results of operations of
the Company and its Subsidiaries taken as a whole, and (b) no dividends or other
distributions have been declared, paid or made upon the Capital Stock of the
Company nor has any of the Capital Stock of the Company been redeemed, retired,
repurchased or otherwise acquired for value by the Company or any of its
Subsidiaries, except as permitted by subsection 8.11 of the Credit Agreement.
(h) The representations and warranties made by the Company in
each Credit Document to which it is a party and herein are true and correct in
all material respects on and as of the Third Amendment Effective Date, before
and after giving effect to this Amendment, as if made on the Third Amendment
Effective Date.
(i) Attached as Schedule 3(i) is a listing of the correct
names and jurisdictions of organization of each of the Company and its
Subsidiaries as of the date hereof and their organizational identification
numbers (if any).
4. Conditions Precedent. This Amendment shall become effective
as of the date (the "Third Amendment Effective Date") when each of the
conditions precedent set forth below shall have been satisfied or waived:
(a) the Administrative Agent shall have received (i) this
Amendment, executed and delivered by a duly authorized officer of the Company,
the Administrative Agent, the Required Lenders, the Section 4.4 Lenders and the
Tranche B-3 Lenders and (ii) each party to a Guarantee shall have acknowledged
and agreed to this Amendment and shall have agreed that the Guarantee applies to
and guarantees the Tranche B-3 Term Loans;
(b) the Administrative Agent shall have received, for the
account of each Lender that has executed and delivered this Amendment on or
prior to June 27, 2001, an amendment fee equal to 0.25% of such Lender's
Commitment;
(c) on and as of the Third Amendment Effective Date and after
giving effect to this Amendment and the transactions contemplated hereby, no
Default or Event of Default shall have occurred and be continuing;
(d) the Administrative Agent shall have received, for the
account of each Tranche B-3 Lender requesting a Tranche B-3 Note pursuant to
Subsection 4.13 of the Credit Agreement, a Tranche B-3 Note of the Company
conforming to the requirements of the Credit Agreement and executed by a duly
authorized officer of the Company;
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(e) the Administrative Agent and the Syndication Agent shall
have received, dated the Third Amendment Effective Date and addressed to the
Agents and the Lenders, (i) an opinion of Gibson, Dunn & Crutcher LLP, counsel
to Holdings and the Company, in form and substance satisfactory to the
Administrative Agent, the Syndication Agent and their counsel and (ii) an
opinion of Bryan Cave LLP, Arizona counsel to the Company, in form and substance
satisfactory to the Administrative Agent, the Syndication Agent and their
counsel; and
(f) the Administrative Agent and the Lenders shall have
received the consolidated financial statements of the Company for its fiscal
quarter ended May 6, 2001 and compliance certificate with respect thereto, as
provided for in Subsections 7.1(b) and 7.2(b), and such compliance certificate
shall show compliance with the covenants in subsections 8.8 through 8.10 as at
the end of such fiscal quarter.
5. Continuing Effect of Credit Documents. Except as expressly
amended, modified and supplemented hereby, the provisions of the Credit
Agreement and the other Credit Documents are and shall remain in full force and
effect in accordance with their respective terms.
6. Expenses. The Company agrees to pay or reimburse the
Lenders for all of their reasonable out-of-pocket costs and expenses incurred in
connection with this Amendment and any other documents prepared in connection
herewith, and consummation of the transactions contemplated hereby and thereby,
including the reasonable fees and expenses of counsel to the Lenders.
7. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
8. Counterparts; Binding Effect. This Amendment may be
executed in any number of counterparts by the parties hereto, each of which
counterparts when so executed shall be an original, but all counterparts taken
together shall constitute one and the same instrument. This Amendment may be
delivered by facsimile transmission of the relevant signature pages thereof. The
execution and delivery of this Amendment by any Lender shall be binding upon
each of its 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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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed and delivered by their respective duly authorized
officers as of the day and year first above written.
CSK AUTO, INC.
By: _____________________________________________
Name:
Title:
THE CHASE MANHATTAN BANK, as
Administrative Agent, Issuing Bank and a Lender
By: _____________________________________________
Name:
Title:
_________________________________________________
Name of Lender
By: _____________________________________________
Name:
Title:
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ACKNOWLEDGEMENT AND CONSENT
(1) Each of CSK AUTO CORPORATION ("Holdings"), AUTOMOTIVE
INFORMATION SYSTEMS, INC., and CSKAUTO.COM, INC., does hereby acknowledge and
consent to the foregoing Amendment. Each of Holdings, AUTOMOTIVE INFORMATION
SYSTEMS, INC., and CSKAUTO.COM, INC., does hereby confirm and agree that, after
giving effect to such Amendment, its Guarantee applies to and guarantees the
Tranche B-3 Term Loans and its Guarantee is and shall continue to be in full
force and effect and is hereby confirmed and ratified in all respects.
(2) Holdings hereby acknowledges and confirms its obligations
under the Holdings Pledge Agreement and agrees that the Holdings Pledge
Agreement shall continue to support the obligations of CSK AUTO, INC., (the
"Borrower") under all of the Credit Documents, including, without limitation, as
such documents have been heretofore amended or modified, and, to the extent
permitted by applicable law, as may be further amended or modified from time to
time.
(3) The Borrower hereby acknowledges and confirms its
obligations under the Company Pledge Agreement and Company Security Agreement
and agrees that the Company Pledge Agreement and the Company Security Agreement
shall continue to support the Borrower's obligations under all of the Credit
Agreements, including, without limitation, as such documents have been
heretofore amended or modified, and, to the extent permitted by applicable law,
as may be further amended or modified from time to time.
CSK AUTO CORPORATION
By: ____________________________________
Name:
Title:
AUTOMOTIVE INFORMATION SYSTEMS, INC.
By: ____________________________________
Name:
Title:
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CSKAUTO.COM, INC.
By: ____________________________________
Name:
Title:
CSK AUTO, INC.
By: ____________________________________
Name:
Title:
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Schedule A to Amendment No. 3
SCHEDULE I-A
LIST OF ADDRESSES FOR NOTICES;
COMMITMENT AMOUNTS
THE CHASE MANHATTAN BANK
270 Park Avenue, 4th Floor
New York, New York 10017
Attn: Neil R. Boylan
Telecopy: (212) 972-0009
Commitment Amounts:
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Tranche B-3 Term Loan $10,000,000.00
Commitment Percentage:
---------------------
Tranche B-3 Term Loan 37.04%
CREDIT SUISSE FIRST BOSTON
11 Madison Avenue
New York, New York 10285
Attn: Kevin Smith
Telecopy: (212) 325-8228
Commitment Amount:
-----------------
Tranche B-1 Term Loan $10,000,000.00
Commitment Percentage:
---------------------
Tranche B-3 Term Loan 37.04%
UBS AG, STAMFORD BRANCH
677 Washington Boulevard
Stamford, CT 06901
Attn: Lynne Alfarone
Telecopy: (203) 719-3888
Commitment Amount:
-----------------
Tranche B-3 Term Loan $ 7,000,000.00
Commitment Percentage:
---------------------
Tranche B-3 Term Loan 25.92%
15
Schedule 3(i) to Amendment No. 3
SCHEDULE 5.12
1. CSK Auto, Inc., an Arizona corporation
Tax Identification Number: 86-0221312
2. CSKAUTO.COM, Inc., a Delaware corporation
Tax Identification Number: 86-0951003
3. Automotive Information Systems, Inc., a Minnesota corporation
Tax Identification Number: 86-0965313
16
Exhibit A to Amendment No. 3
EXHIBIT B-3 to
Third Amended and Restated Credit Agreement
FORM OF TRANCHE B-3 NOTE
$__________ New York, New York
__________ __, __
FOR VALUE RECEIVED, the undersigned, CSK AUTO, INC., an
Arizona corporation (the "Company"), promises to pay to the order of
_______________ (the "Lender") at the office of The Chase Manhattan Bank, a New
York banking corporation ("Chase"), 270 Park Avenue, New York, New York 10017,
in lawful money of the United States of America and in immediately available
funds, the principal amount of ____________________ DOLLARS ($__________), or,
if less, the aggregate unpaid principal amount of all loans made by the Lender
pursuant to subsection 2.1 of the Third Amended and Restated Credit Agreement
referred to below, which sum shall be due and payable in such amounts and on
such dates as are set forth in the Third Amended and Restated Credit Agreement,
dated as of September 30, 1999 among the Company, the Lender and certain other
banks and financial institutions parties thereto, Chase, as Administrative
Agent, and Lehman Commercial Paper Inc., a Delaware corporation, as
Documentation Agent, (as the same may be from time to time amended, supplemented
or otherwise modified, the "Third Amended and Restated Credit Agreement"; terms
defined therein, and not otherwise defined herein, being used herein as so
defined). The undersigned further agrees to pay interest at said office, in like
money, from the date hereof on the unpaid principal amount hereof from time to
time outstanding at the rates and on the dates specified in subsection 4.5 of
the Third Amended and Restated Credit Agreement. The holder of this Note is
authorized to record the date, Type and amount of the Tranche B-3 Term Loan made
by the Lender pursuant to subsection 2.1 of the Third Amended and Restated
Credit Agreement, the date and amount of each payment or prepayment of principal
hereof, and the date of each interest rate conversion or continuation pursuant
to subsection 4.2 of the Third Amended and Restated Credit Agreement and the
principal amount subject thereto, on the schedules annexed hereto and made a
part hereof and any such recordation shall constitute prima facie evidence of
the information so recorded, provided that the failure of the Lender to make
such recordation (or any error in such recordation) shall not affect the
obligations of the Company hereunder or under the Third Amended and Restated
Credit Agreement.
This Note is one of the Tranche B-3 Notes referred to in the
Third Amended and Restated Credit Agreement and is entitled to the benefits
thereof and is subject to optional and mandatory prepayment in whole or in part
as provided therein.
This Note is secured and guaranteed as provided in the
Security Documents, as supplemented, and the Guarantees, as supplemented.
Reference is hereby made to the Security
17
Documents, as supplemented, and the Guarantees, as supplemented, for a
description of the properties and assets in which a security interest has been
granted, the nature and extent of the security and guarantees, the terms and
conditions upon which the security interest and each guarantee was granted and
the rights of the holder of this Note in respect thereof. The undersigned agrees
to pay all costs and expenses incurred by the Lender in connection with the
enforcement of its rights and remedies under the Third Amended and Restated
Credit Agreement, this Note, the Security Documents, as supplemented, the
Guarantees, as supplemented, and each other Credit Document.
Upon the occurrence of any one or more of the Events of
Default specified in the Third Amended and Restated Credit Agreement, all
amounts then remaining unpaid on this Note shall become, or may be declared to
be, immediately due and payable all as provided therein.
All parties now and hereafter liable with respect to this
Note, whether maker, principal, surety, guarantor, endorser or otherwise, hereby
waive presentment, demand, protest and all other notices of any kind.
THIS NOTE MAY NOT BE TRANSFERRED EXCEPT IN COMPLIANCE WITH THE
TERMS OF THE THIRD AMENDED AND RESTATED CREDIT AGREEMENT. TRANSFERS OF THIS NOTE
MUST BE RECORDED IN THE REGISTER MAINTAINED BY THE ADMINISTRATIVE AGENT PURSUANT
TO THE TERMS OF THE THIRD AMENDED AND RESTATED CREDIT AGREEMENT.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
CSK AUTO, INC.
By:_____________________________
Title:
18
Schedule A to
Tranche B-3 Note
ALTERNATE BASE RATE LOANS
AND REPAYMENTS OF ALTERNATE BASE RATE LOANS
Amount Unpaid Principal
Amount of Alternate Converted to Balance of Alternate
Base Rate Alternate Amount of Principal Amount Converted to Base Rate Notation
Date Loans Base Rate Loans Repaid Eurodollar Loans Loans Made By
---- ----- --------------- ------ ---------------- ----- -------
19
Schedule B to
Tranche B-3 Note
EURODOLLAR LOANS
AND REPAYMENTS OF EURODOLLAR LOANS
Amount
Converted to Amount
Amount of Euro- Euro- Interest Period and Converted Unpaid Principal
dollar dollar Eurodollar Rate Amount of to Alternate Base Rate Balance of Notation
Date Loans Loans with Respect Thereto Principal Repaid Loans Eurodollar Loans Made By
---- ----- ----- -------------------- ---------------- ----- ---------------- -------