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EXHIBIT 10.1.26
CONFORMED COPY
SIXTH AMENDMENT, WAIVER AND AGREEMENT, dated as of December 8,
1997 (this "Waiver and Amendment") to the Amended and Restated Credit Agreement
dated as of January 25, 1996 (as amended pursuant to the First Amendment, dated
as of April 23, 1996, the Second Amendment, dated as of August 28, 1996, the
Third Amendment, dated as of January 25, 1997, the Fourth Amendment, dated as
of July 15, 1997, and the Fifth Amendment and Waiver, dated as of October 24,
1997 (the "Fifth Amendment and Waiver"), and as further amended, supplemented,
waived or otherwise modified from time to time, the "Credit Agreement"), among
A.P.S., INC., a Delaware corporation (the "Borrower"), the several banks and
other financial institutions from time to time parties thereto (collectively,
the "Lenders"; individually a "Lender") and THE CHASE MANHATTAN BANK (formerly
known as Chemical Bank), a New York banking corporation, as agent for the
Lenders (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 Credit Agreement;
WHEREAS, pursuant to the Fifth Amendment and Waiver the
Lenders waived, until December 31, 1997 (the "Existing Waiver Expiration
Date"), any Default or Event of Default arising out of the failure of the
Borrower to comply with the requirements of subsection 8.1 of the Credit
Agreement at the last day of the fiscal quarter ending October 25, 1997 (the
"Existing Defaults");
WHEREAS, the Borrower has advised the Agent and the Lenders
that the Borrower is pursuing a financing transaction pursuant to which the
Borrower would propose that the Agent and the Lenders agree to amend the Credit
Agreement to, among other things, permit the incurrence of additional
Indebtedness under a new tranche of the Credit Agreement and adjust the
requirements of subsection 8.1 of the Credit Agreement in order to cure the
Existing Defaults;
WHEREAS, the Borrower acknowledges that, if the Credit
Agreement is not amended as set forth above on or before the Existing Waiver
Expiration Date on terms that are acceptable to the Required Lenders (or all of
the Lenders to the extent required under subsection 11.1 of the Credit
Agreement) (the "Proposed Credit Agreement Amendment"), the Existing Defaults
would be reinstated (i.e., Events of Default would then exist) and the Agent
and Lenders would be entitled to exercise all of their rights and remedies
under the Loan Documents and applicable law with respect to the Existing
Defaults;
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WHEREAS, the Borrower has requested that, even if the Existing
Waiver Expiration Date occurs prior to the consummation of the Proposed Credit
Agreement Amendment, the Lenders agree (a) to permit the Borrower to continue
to borrow under the Credit Agreement until February 10, 1998 by waiving the
failure of the Borrower to satisfy the conditions precedent to borrowing under
subsection 6.2 of the Credit Agreement (as a result of (i) the reinstatement
and continuance of the Existing Defaults or (ii) any Default or Event of
Default arising out of the failure of the Borrower to comply with the
requirements of subsection 8.1 of the Credit Agreement at the last day of the
fiscal quarter ending January 31, 1998 (together with the Existing Defaults,
the "Covenant Defaults") and (b) not to exercise their rights and remedies
under the Loan Documents and applicable law with respect to the Covenant
Defaults;
WHEREAS, in connection with the foregoing, the Borrower has
also requested that the Lenders agree to amend certain provisions of the Credit
Agreement; and
WHEREAS, the Agent and the Lenders are willing to agree to the
requested waiver, forbearance and amendments, but only upon the terms and
conditions set forth herein;
NOW THEREFORE, in consideration of the premises contained
herein, the parties hereto agree as follows:
1. Defined Terms. Unless otherwise defined herein, terms
which are defined in the Credit Agreement and used herein are so used as so
defined and the following term shall have the following meaning:
"Sixth Amendment Period": the period commencing on the
Existing Waiver Expiration Date and ending on the earliest to occur of
(a) February 10, 1998, (b) the date of the occurrence of any Default
or Event of Default (other than the Covenant Defaults) or (c) the
effective date of the Proposed Credit Agreement Amendment.
2. Waiver. The Agent and the Lenders hereby agree to waive,
during the Sixth Amendment Period, the conditions precedent to borrowing
contained in subsection 6.2 of the Credit Agreement, but only to the extent
that the Borrower is unable to satisfy the conditions set forth in said
subsection due to the reinstatement or occurrence and continuance of the
Covenant Defaults.
3. Agreement. The Agent and the Lenders hereby agree to
forbear, during the Sixth Amendment Period, from the exercise of any rights or
remedies under the Credit Agreement, the other Loan Documents and applicable
law in respect of the Covenant Defaults.
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4. Reservation of Rights. Notwithstanding anything contained
in this Waiver and Amendment, the Borrower acknowledges that the Agent and the
Lenders do not waive, and expressly reserve, the right to exercise, at any time
during the Sixth Amendment Period, any and all of their rights and remedies
under (a) the Credit Agreement, the other Loan Documents and applicable law in
respect of the Covenant Defaults against any Person other than the Borrower or
any other Loan Party and (b) any other document or instrument, including
without limitation, the right of the Agent to give a "Blockage Notice" as
defined in and in accordance with Article X of the Senior Subordinated Note
Indenture.
5. Additional Limitation on Borrowings. (a) Consistent
with the terms of the Fifth Amendment and Waiver, the Borrower hereby agrees
that, notwithstanding anything to the contrary in the Credit Agreement, the
Borrower shall not have the right to, and shall not, request a borrowing of
Revolving Credit Loans or Swing Line Loans, or the issuance of a Letter of
Credit if, after giving effect to such borrowing or issuance, the Aggregate
Outstanding Revolving Credit of all the Revolving Credit Lenders would exceed
$204,750,000 at any time during the Sixth Amendment Period.
(b) Consistent with the terms of the Fifth Amendment and
Waiver, notwithstanding anything to the contrary in subsection 2.1(b), 2.6 or
4.2 of the Credit Agreement, during the Sixth Amendment Period, (i) all
outstanding Eurodollar Loans shall automatically be converted to ABR Loans at
the end of the current Interest Periods with respect thereto, (ii) no
outstanding ABR Loans may be converted to Eurodollar Loans at any time and
(iii) all Loans made under the Credit Agreement shall be made as ABR Loans.
6. Cash Flow Forecasts. Consistent with the terms of
the Fifth Amendment and Waiver, during the Sixth Amendment Period, the Borrower
shall deliver to the Agent and each Lender on the Wednesday of every calendar
week, commencing with the first Wednesday to occur during the Sixth Amendment
Period, a forecast of the cash flows, cash balances and line availability of
the Borrower and its Restricted Subsidiaries for the period of four consecutive
calendar weeks beginning in the week in which the applicable Wednesday occurs
together with a comparison of the actual cash flows, cash balances and line
availability of the Borrower and its Restricted Subsidiaries for the
immediately preceding week to the most recently forecasted cash flows of the
Borrower and its Restricted Subsidiaries for the week in which such Wednesday
occurs.
7. Amendment to Subsection 1.1. Subsection 1.1 of the
Credit Agreement is hereby amended by (a) deleting the phrase "pursuant to
subsection 7.9(a)" from the definition of the term
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"Security Documents" and (b) inserting in said subsection in proper
alphabetical order the following definitions:
"'Sixth Amendment and Waiver": the Sixth Amendment,
Waiver and Agreement, dated as of December 8, 1997, to this
Agreement.
"Sixth Amendment Effective Date": as defined in the
Sixth Amendment and Waiver.
"Sixth Amendment Period": as defined in the Sixth
Amendment and Waiver.".
8. Amendment to Subsection 7.1. Subsection 7.1 of the
Credit Agreement is hereby amended by adding after the word "year" in the
twelfth line of paragraph (c) of said subsection, the phrase "(including
separate line items for trade payables and for other accounts payable for such
period)".
9. Amendment to Subsection 7.9. Subsection 7.9 of the
Credit Agreement is hereby amended by deleting paragraph (a) of said subsection
in its entirety and substituting therefor the following new paragraph (a):
"(a) Within five Business Days after the acquisition
by any Loan Party of an ownership interest in any material property
after the Sixth Amendment Effective Date (including, without
limitation, any real property or any leasehold interest therein, in
each case with a fair market value (as determined in good faith by the
Borrower) at the time of such acquisition greater than $500,000) that
is not subject to a Lien created pursuant to a Loan Document, the
Borrower shall, or shall cause such other Loan Party to, execute and
deliver to the Agent, for the benefit of the Lenders, appropriate
mortgages, pledge agreements and security agreements and the like
covering such property or leasehold interest, all in form and
substance reasonably satisfactory to the Agent. In connection with the
foregoing, the Borrower shall cause to be promptly and duly taken,
executed, acknowledged and delivered such further acts, documents and
assurances as may be necessary or as the Agent may reasonably request
in order to carry out the purpose of this subsection (including,
without limitation, the execution and delivery of UCC financing
statements, similar documents and title insurance policies). The
mortgages, pledge agreements and security agreements referred to above
shall be accompanied by a copy of such resolutions and such incumbency
certificates and legal opinions as are reasonably requested by the
Agent.
10. Amendment to Subsection 8.18. Subsection 8.18 of the
Credit Agreement is hereby amended by deleting paragraph (b) of said subsection
in its entirety and substituting therefor the following new paragraph (b):
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"(b) Form or create any Restricted Subsidiary or
designate any Jobber Subsidiary as a "Restricted Subsidiary" in
accordance with the definition of the term "Jobber Subsidiary", unless
(i) within five Business Days thereafter, (A) such newly formed,
created or designated Restricted Subsidiary becomes a Loan Party and
executes and delivers a guarantee in favor of the Agent, for the
benefit of the Lenders, substantially in the form of the Subsidiaries
Guarantee or otherwise becomes a party to the Subsidiaries Guarantee
pursuant to documentation reasonably satisfactory to the Agent, (B)
each Loan Party that is a stockholder of such newly formed, created or
designated Restricted Subsidiary pledges to the Agent, for the benefit
of the Lenders, 100% of the issued and outstanding stock of such
Restricted Subsidiary owned by such stockholder pursuant to a pledge
agreement substantially in the form of the Borrower Stock Pledge
Agreement or pursuant to documentation reasonably satisfactory to the
Agent and (C) such newly formed, created or designated Restricted
Subsidiary executes and delivers a security agreement in favor of the
Agent, for the benefit of the Lenders, substantially in the form of
the Subsidiaries Security Agreement or otherwise becomes a party to
the Subsidiaries Security Agreement pursuant to documentation
reasonably satisfactory to the Agent and (ii) within ten Business Days
thereafter, the Borrower causes to be promptly and duly taken,
executed, acknowledged and delivered all such further acts, documents
and assurances as may be necessary or as the Agent may reasonably
request in order to confirm the grant of the Lien on substantially all
of such newly formed, created or designated Restricted Subsidiary's
property in favor of the Agent, for the benefit of the Lenders,
pursuant to the documentation described in clause (C) above and
otherwise to carry out the purpose of this subsection (including,
without limitation, the execution and delivery of other security
documents, UCC financing statements, similar documents and title
insurance policies). The guarantees, pledge agreements, security
agreements and other documents referred to above shall be accompanied
by a copy of such resolutions and such incumbency certificates and
legal opinions as are reasonably requested by the Agent."
11. Amendment to Subsection 8.19 (a) Subsection 8.19 of
the Credit Agreement is hereby amended by deleting the phrase "(subject to the
Borrower's rights with respect to the General Fund Account pursuant to
subsection 3(f)(ii) of the Borrower Security Agreement)" contained in paragraph
(a) of said subsection.
(b) Subsection 8.19 of the Credit Agreement is hereby further
amended by (i) deleting the word "and" at the end of paragraph (a) of said
subsection, (ii) deleting the "." at the end of paragraph (b) of said
subsection and substituting therefor
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"; and", and (iii) adding the following new paragraph (c) to the end of said
subsection:
"(c) Notwithstanding anything to the contrary in this
Agreement, in the last two sentences of subsection 3(f)(ii) of the
Borrower Security Agreement or in the last two sentences of subsection
3(e)(ii) of the Subsidiaries Security Agreement:
(i) All funds on deposit in the General Fund Account
shall be transferred to the Concentration Account on the Sixth
Amendment Effective Date;
(ii) On each Business Day, commencing with the
Business Day following the Sixth Amendment Effective Date, the
Agent shall cause the amounts on deposit in the Concentration
Account to be applied in the following manner:
(A) first, an amount, not exceeding the
estimated daily disbursement needs of the Loan Parties (after
giving effect to amounts, if any, already on deposit in the
General Fund Account) in the conduct of their businesses in
the ordinary course, requested by the Borrower in a written
notice to the Agent delivered prior to 2:00 p.m., New York
City time, on such Business Day, shall be transferred from the
Concentration Account to the General Fund Account;
(B) second, any remaining amounts in excess
of $5,000,000 shall be applied to the prepayment of the Swing
Line Loans, Revolving Credit Loans and Reimbursement
Obligations in the manner specified in clause (ii) of the
fourth sentence of subsection 4.4(a) by transfer to the
Agent's loan clearing account designated by the Agent; and
(C) third, any remaining amounts shall be
held in the Concentration Account until such amounts are
applied or held as set forth in this subsection 8.19(c) on the
next Business Day;
(iii) The Borrower shall notify the Agent prior to
2:00 p.m., New York City time, of the amount to be transferred
to the Agent's loan clearing account in order for the Borrower
to comply with clause (ii)(B) of this subsection 8.19(c); and
(iv) Funds deposited in the General Fund Account may
not be directly withdrawn by the Borrower and may only be (A)
transferred to another disbursement account of the Borrower,
(B) transferred by wire transfer or (C) used to honor checks
and other drafts presented against the General Fund Account,
in each such case to
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pay obligations of the Loan Parties payable in the conduct of
their businesses in the ordinary course;
provided that nothing in this subsection 8.19(c), in subsection
3(f)(ii) of the Borrower Security Agreement or subsection 3(e)(ii) of
the Subsidiaries Security Agreement shall be deemed to limit or
otherwise impair the Agent's rights and remedies (including, without
limitation, rights of set-off and the rights of the Agent with respect
to the Concentration Account and the funds on deposit therein as
provided in the Borrower Security Agreement and the Subsidiaries
Security Agreement) upon the occurrence and during the continuance of
an Event of Default (other than the Covenant Defaults (as defined in
the Sixth Amendment and Waiver) prior to the end of the Sixth
Amendment Period) under this Agreement, the Borrower Security
Agreement, the other Loan Documents or applicable law in respect of
deposits in the Concentration Account, the General Fund Account or any
other account.".
12. Amendment to Subsection 11.6. Subsection 11.6 of the
Credit Agreement is hereby amended by (a) deleting the phrase "of the assigning
Lender" at the end of the second sentence of paragraph (c) of said subsection
and (b) substituting therefor the phrase:
"and/or Revolving Credit Loans of the assigning Lender;
provided that during the period from the Sixth Amendment
Effective Date until the end of the Sixth Amendment Period, no
Lender shall assign any of its Loans or Commitments unless
such Lender simultaneously assigns to the same assignee a like
percentage of such Lender's Term Loan Commitments and/or Term
Loans and Revolving Credit Commitments and/or Revolving Credit
Loans".
13. Limitation on Investments. Notwithstanding anything
to the contrary in subsection 8.11 of the Credit Agreement, during the period
from the Sixth Amendment Effective Date until the end of the Sixth Amendment
Period, investments otherwise permitted pursuant to said subsection shall be
limited to an amount not to exceed $28,500,000.
14. Limitation on Asset Sales and Acquisitions. During the
period from the Sixth Amendment Effective Date until the end of the Sixth
Amendment Period, the Borrower may not, without the prior written consent of
the Required Lenders, consummate (a) any Disposition otherwise permitted
pursuant to subsection 8.6(g) of the Credit Agreement or (b) any acquisitions
otherwise permitted pursuant to subsection 8.12 of the Credit Agreement for
aggregate consideration (calculated in accordance with said subsection 8.12)
for all such acquisitions in excess of $1,000,000.
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15. Inventory Report and Real Estate Appraisals. Pursuant to
subsection 7.2(h) of the Credit Agreement, the Borrower shall furnish copies to
the Agent and the Lenders, within three Business Days of the receipt thereof by
the Borrower, of (a) the inventory report and analysis prepared by BGA
Consulting, a division of Xxxxxxx, Xxxxxxxx & Associates, Inc. and (b) all
appraisals or other material analyses of any real property or leasehold
interests therein of the Borrower or any other Loan Party, in each case with a
fair market value (as determined in good faith by the Borrower) greater than
$500,000.
16. Engagement of Xxxxxxx & Marsal, Inc.. During the Sixth
Amendment Period, the Borrower and/or its affiliates shall continue their
engagement of Xxxxxxx & Marsal, Inc. as financial consultants and review from
time to time with the Agent and the Lenders the scope and terms of such
engagement.
17. Information/Further Assurances. Pursuant to subsection
7.2(h) of the Credit Agreement, the Borrower shall (i) provide to the Agent all
information reasonably requested by the Agent concerning (A) the identity and
location of the assets and property of the Borrower and its Restricted
Subsidiaries and (B) the granting and perfection of Liens in favor of the Agent
under, and in connection with the transactions contemplated by, the Loan
Documents and (ii) cause to be promptly and duly taken, executed, acknowledged
and delivered all such further acts, documents and assurances as may be
necessary or as the Agent may reasonably request in order to evidence the
grant, and to effect the perfection of, Liens on any property of the Borrower
or any of its Subsidiaries as contemplated by the Loan Documents.
18. Payment of Lender Costs and Expenses. The Borrower
hereby acknowledges that the reasonable costs and expenses of each Lender
incurred, or to be incurred, during the period covered by the Fifth Amendment
and Waiver and the Sixth Amendment Period, in connection with the Loan
Documents or such Lender's lending relationship with any Loan Party, are
payable or reimbursable by the Borrower pursuant to subsection 11.5(b) of the
Credit Agreement.
19. Representations and Warranties. (a) On and as of the
date hereof and after giving effect to this Waiver and Amendment, the Borrower
hereby confirms, reaffirms and restates in all material respects the
representations and warranties set forth in Section 5 of the Credit Agreement
mutatis mutandis, except to the extent that such representations and warranties
expressly relate to a specific earlier date in which case the Borrower hereby
confirms, reaffirms and restates in all material respects such representations
and warranties as of such earlier date, provided that the references to the
Credit Agreement in such representations and warranties shall be deemed to
refer to the Credit Agreement as amended prior to the date hereof.
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(b) The Borrower further represents, warrants and covenants
that (i) except for the property of the Borrower and its Restricted
Subsidiaries set forth by category on Schedule I hereto, the Borrower and its
Restricted Subsidiaries do not own or lease any material assets and property
(real or personal, tangible or intangible) that is not subject to a first
priority Lien in favor of the Agent, subject to Liens permitted under
subsection 8.3 of the Credit Agreement and (ii) upon the reasonable request of
the Agent or the Required Lenders, the Borrower shall provide, or cause to be
provided, reasonably detailed additional information to the Agent and the
Lenders regarding any property set forth on Schedule I.
(c) The Borrower further represents and warrants that the
Borrower and the other Loan Parties are truly and justly indebted to the Agent
and the Lenders pursuant to the Loan Documents, without defense, counterclaim
or offset of any kind.
20. Effectiveness. This Waiver and Amendment shall
constitute a Loan Document and shall become effective as of the date hereof
(the "Sixth Amendment Effective Date") upon satisfaction of the following
conditions:
(a) receipt by the Agent of counterparts of this Waiver and
Amendment duly executed and delivered by the Borrower and the Required
Lenders and consented to by the Guarantors;
(b) receipt by the Agent of the following documents, each in
form and substance satisfactory to the Agent: (i) a stock pledge
agreement made by American Parts System, Inc. providing for the pledge
of the capital stock of Installers' Service Warehouse Inc.,
substantially in the form of the Borrower Stock Pledge Agreement, (ii)
a supplement to the Trademark Security Agreement, dated as of May 15,
1996, made by A.P.S. Management Services, Inc. in favor of the Agent
in respect of a single trademark registration filed on December 23,
1996 and (iii) a Security Agreement made by APS Holding Corporation in
favor of the Agent, providing for Holding's grant of a first priority
Lien on substantially all of its personal property;
(c) the Agent's receipt of the information requested pursuant
to Section 17 hereof;
(d) receipt by each of Xxxxxxxx & Xxxxx, L.L.C. and Xxxxxxx
Xxxxxxx & Xxxxxxxx of a retainer in the amount as agreed between the
Agent and the Borrower; and
(b) the payment by the Borrower of all amounts owing under the
Credit Agreement, the payment of which has been requested on or prior
to the date hereof, including amounts owing in respect of interest,
fees and expenses.
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21. Compliance. The Borrower agrees that its failure to
perform timely its obligations set forth in Sections 5, 6 and 13 through 17
shall constitute an immediate Event of Default under paragraph (c) of Section 9
of the Credit Agreement.
22. Continuing Effect; No Other Amendments or Waivers.
Except as expressly amended or waived hereby, all the terms and provisions of
the Credit Agreement are and shall remain in full force and effect. The
amendments and waiver provided for herein are limited to the specific
subsections of the Credit Agreement specified herein and shall not constitute
an amendment or a waiver of, or an indication of the Agent's or the Lenders'
willingness to waive, any other provisions of the Credit Agreement or the same
subsection for any other date or time period (whether or not such other
provisions or compliance with such subsection for another date or time period
are affected by the circumstances addressed in this Waiver and Amendment). The
Agent and the Lenders reserve the right to exercise all of their rights and
remedies under the Credit Agreement, the other Loan Documents and applicable
law against the Borrower or any other Loan Party upon the expiration of the
Sixth Amendment Period in respect of the Events of Default arising by reason of
the Covenant Defaults or any other Events of Default which may occur.
23. Counterparts. This Waiver and Amendment may be executed
by one or more of the parties to this Waiver and Amendment 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. This
Waiver and Amendment may be delivered by facsimile transmission of the relevant
signature pages hereof, and the failure to deliver an executed counterpart by
other means shall not affect the validity, enforceability or binding effect of
this Waiver. A set of the copies of this Waiver and Amendment signed by all
the parties shall be delivered to the Borrower and the Agent.
24. GOVERNING LAW. THIS WAIVER AND AMENDMENT AND THE RIGHTS
AND OBLIGATIONS OF THE PARTIES UNDER THIS WAIVER AND AMENDMENT SHALL BE
GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE
STATE OF NEW YORK WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAWS
THEREOF.
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IN WITNESS WHEREOF, the parties hereto have caused this Waiver
and Amendment to be executed and delivered by their respective duly authorized
officers as of the date first above written.
A.P.S., INC.
By: /s/ E. Xxxxxx Xxxxxx
----------------------------------
Title: Senior Vice President
THE CHASE MANHATTAN BANK (formerly
known as Chemical Bank), as
Agent and as a Lender
By: /s/ Xxxxx Xxxxxxxx
--------------------------------
Title: Vice President
AMSOUTH BANK OF ALABAMA
By:
--------------------------------
Title:
BANKERS TRUST COMPANY
By: /s/ Xxxx Xxxxx
--------------------------------
Title: Vice President
BANK OF AMERICA NT & SA
By: /s/ M. Xxxxxx XxXxxxxx
--------------------------------
Title: Vice President
THE BANK OF NEW YORK
By: /s/ Xxx Xxxxxx
--------------------------------
Title: Vice President
BANK ONE, N.A.
By: /s/ Xxxxxxx X. Klamforth
--------------------------------
Title: Vice President
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FIRST AMERICAN NATIONAL BANK
By:
--------------------------------
Title:
NBD BANK
By: /s/ Xxxxxx Xxxxxxx
--------------------------------
Title: First Vice President
FLEET NATIONAL BANK
By: /s/ X.X. X'Xxxx
-------------------------------
Title: Vice President
THE FUJI BANK, LIMITED, HOUSTON
AGENCY
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By: /s/ P.C. Xxxxxxxx, III
--------------------------------
Title: Vice President & Manager
XXXXXXX XXXXX CREDIT PARTNERS L.P.
By:
--------------------------------
Title:
THE MITSUBISHI TRUST AND BANKING
CORPORATION
By: /s/ Xxxx X. Xxxxxx
--------------------------------
Title: First Vice President
NATIONAL BANK OF CANADA
By: /s/ Xxxxx X. Xxxxxxx
--------------------------------
Title: Vice President
By: /s/ Xxxxx X. Xxxxx
--------------------------------
Title: Vice President
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NATIONSBANK OF TEXAS, NATIONAL
ASSOCIATION
By: /s/ Xxxxxxx X. Xxxxxxxxxxx, XX
--------------------------------
Title: Senior Vice President
SOCIETE GENERALE
By: /s/ Xxxxxxx X. Xxxxx
--------------------------------
Title: Vice President
XXXXX FARGO BANK (TEXAS), NATIONAL
ASSOCIATION
By: /s/ Xxxxx Xxxxxxx
--------------------------------
Title: Vice President
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Each of the undersigned hereby consents to the foregoing
Waiver and Amendment and hereby confirms, reaffirms and restates that its
obligations under or in respect of the Credit Agreement and the documents
related thereto to which it is a party are and shall remain in full force and
effect after giving effect to the foregoing Waiver and Amendment.
APS HOLDING CORPORATION
By: /s/ E. Xxxxxx Xxxxxx
--------------------------------
Title: Senior Vice President
BIG A AUTO PARTS, INC.
By: /s/ E. Xxxxxx Xxxxxx
--------------------------------
Title: Senior Vice President
AUTOPARTS FINANCE COMPANY, INC.
By: /s/ E. Xxxxxx Xxxxxx
--------------------------------
Title: Senior Vice President
APS SUPPLY, INC.
By: /s/ E. Xxxxxx Xxxxxx
--------------------------------
Title: Senior Vice President
AMERICAN PARTS SYSTEM, INC.
By: /s/ E. Xxxxxx Xxxxxx
--------------------------------
Title: Senior Vice President
A.P.S. MANAGEMENT SERVICES, INC.
By: /s/ E. Xxxxxx Xxxxxx
--------------------------------
Title: Senior Vice President
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PARTS, INC.
By: /s/ E. Xxxxxx Xxxxxx
--------------------------------
Title: Senior Vice President
PRESATT, INC.
By: /s/ E. Xxxxxx Xxxxxx
--------------------------------
Title: Senior Vice President
INSTALLERS' SERVICE WAREHOUSE, INC.
By: /s/ E. Xxxxxx Xxxxxx
--------------------------------
Title: Senior Vice President
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LIST OF MATERIAL ASSETS
1. OWNED REAL PROPERTY
(a) Xxxxxx Avenue, Texarcana, AR
(b) 1st Street, Berthoud, CO
(c) SE Xxxxx Highway, Stuart, FL
(d) 000-000 Xxxxx Xxxxxx, Xxxxxxxxx, XX
(e) 000 Xxxxxxxxx, Xxxxxxxxx, XX
(f) 0000 Xxxxxxxx Xxxxxx, Xxxxxxx, XX
(g) 000 X. Xxxxxx, Xxxxx, XX
(h) 00 Xxxx Xxxx, Xxxxxxxxxxxx, XX
(i) 0000 Xxxxxxxx Xxxxx Xxxx., Xxxxxxx, XX
(x) 60 (62) Franklin, Warrentown, VA
(k) 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, XX
2. LEASED REAL PROPERTY:
The Borrower is party to numerous real property leases throughout the
United States. These leases are in respect of the premises at which
the Borrower-owned Big A stores and Installers' Service warehouses
(other than those listed under items 1 (h) through (j) above) and the
distribution centers (other than those distribution centers that are
owned by a Loan Party and in respect of which mortgages have been
granted to the Agent on behalf of the Lenders) are located.
3. LEASED PERSONAL PROPERTY:
The Borrower is party to numerous leases for equipment, vehicles and
computers, including, without limitation, equipment, vehicles and
computers of the following types:
(a) Equipment Leases for, inter alia, copiers, fax machines, fork
lifts, hand lifts, telephone systems and other similar types of
equipment.
(b) Computer Leases for, inter alia, various types of hardware
ranging from mainframe to personal computers, operating systems and
other application software programs.
(c) Vehicles Leases for, inter alia, tractor trailers, delivery
trucks, vans, pick-up trucks and passenger vehicles.
