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EXHIBIT 10.1.23
THIRD AMENDMENT, dated as of January 25, 1997 (this "Amendment"), to
the Amended and Restated Credit Agreement dated as of January 25, 1996 (as
amended pursuant to the First Amendment thereto, dated as of April 23, 1996,
the Second Amendment, dated as of August 28, 1996, and this Amendment and as
the same may be 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, the Borrower has requested that the Lenders amend the Credit
Agreement in the manner provided for herein; and
WHEREAS, the Agent and the Lenders are willing to agree to the
requested 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.
2. Amendment to Subsection 7.1(c). Subsection 7.1(c) of the Credit
Agreement is hereby amended by inserting after the word "Borrower" in the third
line the phrase "(other than a fiscal month which is also the end of a
quarterly period or a fiscal year)".
3. Amendment to Subsection 8.1(a). Subsection 8.1(a) of the Credit
Agreement is hereby amended by (a) deleting the amount "$115,000,000" appearing
therein and inserting the amount "$109,800,000" in lieu thereof and (b)
deleting the date "January 27, 1996" appearing therein and inserting the date
"January 25, 1997" in lieu thereof.
4. Representations and Warranties. On and as of the date hereof and
after giving effect to this Amendment, the Borrower hereby confirms, reaffirms
and restates the representations and warranties set forth in Section 5 of the
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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 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
and pursuant to this Amendment.
5. Effectiveness. This Amendment shall become effective as of the date
hereof upon receipt by the Agent of counterparts of this Amendment duly
executed and delivered by the Borrower and the Required Lenders.
6. Continuing Effect; No Other Amendments. Except as expressly amended
hereby, all of the terms and provisions of the Credit Agreement are and shall
remain in full force and effect. The amendments provided for herein are limited
to the specific subsections of the Credit Agreement specified herein and shall
not constitute an amendment of, or an indication of the Agent's or the Lenders'
willingness to amend, any other provisions of the Credit Agreement or the same
subsections for any other date or time period (whether or not such other
provisions or compliance with such subsections for another date or time period
are affected by the circumstances addressed in this Amendment).
7. Expenses. The Borrower agrees to pay and reimburse the Agent for all
its reasonable costs and out-of-pocket expenses incurred in connection with the
preparation and delivery of this Amendment, including, without limitation, the
reasonable fees and disbursements of counsel to the Agent.
8. Counterparts. This Amendment may be executed by one or more of the
parties to this 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. A set of the copies of this Amendment
signed by all the parties shall be delivered to the Borrower and the Agent.
9. GOVERNING LAW. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES UNDER THIS 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 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. ▇▇▇▇▇▇ ▇▇▇▇▇▇
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Title: Vice President
THE CHASE MANHATTAN BANK (formerly
known as Chemical Bank), as
Agent and as a Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
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Title: Vice President
AMSOUTH BANK OF ALABAMA
By: /s/ ▇. ▇▇▇▇▇▇▇
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Title: Commercial Banking Officer
BANK OF AMERICA ILLINOIS
BY: /s/ W. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Title: Vice President
THE BANK OF NEW YORK
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
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Title: Vice President
BANK ONE, COLUMBUS, N.A.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Title: Vice President
BANK PARIBUS
By: /s/ PIERRE-▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇
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Title: General Manager
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
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Title: Vice President
FIRST AMERICAN NATIONAL BANK
By: /s/ ▇▇▇▇▇▇▇ ▇. BROTHERS
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Title: Vice President
FLEET BANK OF MASSACHUSETTS, N.A.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: Senior Vice President
THE FUJI BANK, LIMITED, HOUSTON AGENCY
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: Senior Vice President
THE MITSUBISHI TRUST AND BANKING
CORPORATION
By:
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Title:
NATIONAL BANK OF CANADA
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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Title: Group Vice President
By: /s/ ▇. ▇▇▇▇▇▇▇
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Title: Vice President
NATIONSBANK OF TEXAS, NATIONAL
ASSOCIATION
By: /s/ F. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Title: Senior Vice President
NBD
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: First Vice President
SOCIETE GENERALE
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Title: Vice President
▇▇▇▇▇ FARGO BANK (TEXAS),
NATIONAL ASSOCIATION
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
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Title: Vice President
Each of the undersigned hereby consents to the foregoing 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 Amendment.
APS HOLDING CORPORATION
By: /s/ E. ▇▇▇▇▇▇ ▇▇▇▇▇▇
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Title: Vice President
BIG A AUTO PARTS, INC.
By: /s/ E. ▇▇▇▇▇▇ ▇▇▇▇▇▇
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Title: Vice President
AUTOPARTS FINANCE COMPANY, INC.
By: /s/ E. ▇▇▇▇▇▇ ▇▇▇▇▇▇
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Title: Vice President
APS SUPPLY, INC.
By: /s/ E. ▇▇▇▇▇▇ ▇▇▇▇▇▇
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Title: Vice President
AMERICAN PARTS SYSTEM, INC.
By: /s/ E. ▇▇▇▇▇▇ ▇▇▇▇▇▇
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Title: Vice President
A.P.S. MANAGEMENT SERVICES, INC.
By: /s/ E. ▇▇▇▇▇▇ ▇▇▇▇▇▇
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Title: Vice President
PARTS, INC.
By: /s/ E. ▇▇▇▇▇▇ ▇▇▇▇▇▇
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Title: Vice President
PRESATT, INC.
By: /s/ E. ▇▇▇▇▇▇ ▇▇▇▇▇▇
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Title: Vice President
INSTALLERS' SERVICE WAREHOUSE, INC.
By: /s/ E. ▇▇▇▇▇▇ ▇▇▇▇▇▇
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Title: Vice President