EXHIBIT 10.1
FIRST AMENDMENT TO LOAN AND SECURITY AGREEMENT
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WHEREAS, Aid Auto Stores, Inc., a Delaware corporation, and
▇▇▇▇ Automotive Warehouse, Inc., a New York corporation, jointly
and severally, (collectively referred to herein as "Borrower"),
having a chief executive office located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ entered into a Loan and Security Agreement
with FOOTHILL CAPITAL CORPORATION, a California corporation
("Foothill"), with a place of business located at ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
(referred to herein as "Lender") dated as of September 29, 1997
(the Loan and Security Agreement being herein referred to as the
"Loan Agreement"); and
WHEREAS, Borrower and Lender have agreed to amend the terms
and provisions of the Loan Agreement effective as of the date
stated herein by the provisions set forth below;
NOW, THEREFORE, Borrower and Lender hereby agree that
effective as of the date stated herein as the date of execution by
Lender being April 24, 1998, the Loan Agreement shall be amended
to contain the provisions set forth below and the applicable
provisions of the Loan Agreement shall be superseded to the extent
necessary to give effect to the provisions set forth below:
1. The Section 1.1 definition of Mortgages shall be deleted
and the following inserted in lieu thereof:
"Mortgages" means one or more mortgages, deeds of
trust, or deeds to secure debt, executed by Borrower in favor of
Foothill, the form and substance of which shall be reasonably
satisfactory to Foothill in its reasonable credit judgment, that
encumber the Real Property Collateral and the related improvements
thereto to be granted on or before June 30, 1998.
2. Section 2.3 of the Loan Agreement shall be deleted in its
entirety and the following inserted in lieu thereof:
2.3 Term Loan. Foothill has agreed to make a term loan
(the "Term Loan") to Borrower in the original principal amount of
one hundred seventy five thousand ($175,000) Dollars. The Term
Loan as of March 31, 1998 has an outstanding principal balance of
$87,500 which outstanding balance shall be repaid in two (2) equal
monthly installments of principal in the amount of thirty four
thousand twenty seven and 78/00 ($34,027.78) Dollars commencing on
May 1, 1998 and continuing on June 1, 1998 and a final installment
payment of the greater of nineteen thousand four hundred forty four
and 44/00 ($19,444.44) on July 15, 1998 or the then remaining
outstanding principal amount due together with all accrued and
unpaid interest and any charges in connection with the Term Loan in
order for the Term Loan to be paid in full. The outstanding
principal balance and all accrued and unpaid interest under the
Term Loan shall be due and payable upon the termination of this
Agreement, whether by its terms, by prepayment, by acceleration, or
otherwise. The unpaid principal balance of the Term Loan may be
prepaid in whole or in part without penalty or premium at any time
during the term of this Agreement with all such prepaid amounts to
be applied to the installments due on the Term Loan in the inverse
order of their maturity. All amounts outstanding under the Term
Loan shall constitute Obligations.
3. Section 2.5 of the Loan Agreement shall be deleted in its
entirety and the following inserted in lieu thereof:
2.5 Overadvances. If, at any time or for any reason,
the amount of Obligations owed by Borrower to Foothill pursuant to
Section 2.1 is greater than either the Dollar or percentage
limitations set forth in Sections 2.1 (an "Overadvance"), Borrower
immediately shall, unless otherwise agreed to by Foothill, pay to
Foothill, in cash, the amount of such excess to be used by Foothill
to repay Advances outstanding under Section 2.1. Foothill will
allow an Overadvance up to the amount of $250,000 to exist after
execution of this First Amendment to Loan and Security Agreement,
provided however that Borrower must on or before June 15, 1998
reduce such Overadvance to an amount not greater than $150,000 and
must further reduce and eliminate such Overadvance on or before
July 15, 1998.
4. Section 2.6(a) of the Loan Agreement deleted in its
entirety and the following inserted in lieu thereof:
a. Interest Rate. Except as provided in clause
(c) below, effective as of May 1, 1998 (i) all Obligations shall
bear interest at a per annum rate of two (2.00) percentage points
above the Reference Rate.
5. Section 2.11(d) of the Loan Agreement shall be deleted in
its entirety and the following inserted in lieu thereof:
(d) Financial Examination and Appraisal Fees.
Foothill's customary fee of six hundred fifty ($650) Dollars per
day per examiner, plus out-of-pocket expenses for each financial
analysis and examination (i.e. audits) of Borrower performed by
personnel employed by Foothill; Foothill's customary appraisal fee
of one thousand five hundred ($1,500) Dollars per day per
appraiser, plus out-of-pocket expenses for each appraisal of the
Collateral performed by personnel employed by Foothill; and, the
actual charges paid or incurred by Foothill if it elects to employ
the services of one or more third Persons to perform such financial
analyses and examinations (i.e. audits) of Borrower or to appraise
the Collateral (including but not limited to appraisers engaged by
Foothill if Foothill elects to conduct, prior to the occurrence of
an Event of Default, not more frequently than on a quarterly basis,
an appraisal of Borrowers Inventory to determine and report to
Foothill as to the liquidation value of such Inventory for
Borrowing Base calculation purposes); and
6. Section 2.11(e) of the Loan Agreement shall be deleted in
its entirety and the following inserted in lieu thereof:
(e) Servicing/Collateral Management Fee. On the
first day of each month during the term of this Agreement, and
thereafter so long as any Obligations are outstanding, a
servicing/collateral management fee in an amount equal to two
thousand five hundred ($2,500.00) Dollars; and
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7. Section 6.2(d) of the Loan Agreement shall be deleted in
its entirety and the following inserted in lieu thereof:
(d)(i) on a monthly basis Inventory reports specifying
Borrower's cost and the wholesale market value of its Inventory
with additional detail showing additions to and deletions from the
Inventory, provided that borrowing availability is $200,000 or
greater, but if borrowing availability is less than $200,000,
Borrower shall be required on a weekly basis, to provide Inventory
reports specifying cost and the wholesale market value of its
Inventory with additional detail showing additions to and deletions
from the Inventory, to the extent available; and provided further,
that on the earlier of the implementation of the Borrower's Point
of Sale system and the Borrower's perpetual inventory tracking
system or February 15, 1998, Borrower shall, on a weekly basis,
furnish Inventory reports specifying Borrower's cost and the
wholesale market value of its Inventory by category, with
additional detail showing additions to and deletions from the
Inventory and (ii) Borrower shall contract with RGIS or another
acceptable Inventory counting and verification service acceptable
to Foothill, to conduct and report to Foothill, at Borrower's
expense, not less than two (2) additional times for the remainder
of 1998 and three (3) times in each subsequent year a physical
count of Borrower's Inventory items with the first such physical
count and report being accomplished and delivered to Foothill on or
before July 31, 1998;
8. The first paragraph of Section 6.3(a) of the Loan
Agreement shall be deleted in its entirety and the following
inserted in lieu thereof:
6.3 Financial Statements, Reports, Certificates.
Deliver to Foothill: (a) as soon as available, but in any event
within 45 days after the end of each month during each of
Borrower's fiscal years, a Borrower prepared balance sheet, income
statement, and statement of cash flow covering Borrower's
operations during such period; and (b) (i) immediately, for the
remaining period through July 15, 1998 and on or before the first
day of each July, October, January and April thereafter commencing
July 1, 1998, a budget projection covering a period of thirteen
(13) weeks ("13 Week Period") from each July 15, October 15,
January 15 and April 15 dates commencing July 15, 1998, ("Budget)
created by Borrower and reviewed and confirmed by Argus Management
or the financial and management consultant engaged by Borrower who
shall be acceptable to Foothill, showing by week during each week
of the next 13 Week Period, the projected weekly receipts and
projected weekly expenditures as of the end of each such week for
the next 13 Week Period period and showing for the cash flow
statement only, the weekly cumulative total of the prior four (4)
weeks projected weekly receipts and projected weekly expenditures;
and (ii) for each week beginning May 11, 1998 for the immediately
preceding four (4) week period the actual receipts and actual
disbursements as of the first day of each week during the
immediately preceding four (4) week period; and (c) as soon as
available, but in any event within 90 days after the end of each of
Borrower's fiscal years, financial statements of Borrower for each
such fiscal year, audited by independent certified public
accountants reasonably acceptable to Foothill in the exercise of
Foothill's reasonable commercial judgement and certified, without
any qualifications, by such accountants to have been prepared in
accordance with GAAP, together with a certificate of such
accountants addressed to Foothill stating that such accountants do
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not have knowledge of the existence of any Default or Event of
Default; and (d) on a weekly basis, commencing on May 11, 1998 and
continuing on each Monday thereafter, a report created by Borrower
and reviewed and confirmed by Argus Management or the financial and
management consultant engaged by Borrower who shall be acceptable
to Foothill, showing the actual receipts and expenditures, on a
cumulative basis to the cumulative weekly projection of receipts
and expenses referenced in (b) above for the immediately ended four
(4) week period together with an explanation of any variances
between the actual and budgeted numbers.
Such audited financial statements shall include a balance sheet,
profit and loss statement, and statement of cash flow and, if
prepared, such accountants' letter to management. If Borrower is
a parent company of one or more Subsidiaries, or Affiliates, or is
a Subsidiary or Affiliate of another company, then, in addition to
the financial statements referred to above, Borrower agrees to
deliver financial statements prepared on a consolidating basis so
as to present Borrower and each such related entity separately, and
on a consolidated basis.
9. Section 7.20(a) of the Loan Agreement shall be deleted in
its entirety and the following inserted in lieu thereof:
7.20 Financial Covenants. Fail to maintain:
(a) Tangible Net Worth. A negative Tangible Net
Worth of ($400,000) or less as of the fiscal quarter ended March
31, 1998, a negative Tangible Net Worth of ($900,000) or less as of
the fiscal quarter ended June 30, 1998 or a negative Tangible Net
Worth of ($460,000) or less as of the fiscal quarter ended
September 30, 1998 or a negative Tangible Net Worth of ($270,000)
or less as of the fiscal quarter ended December 31, 1998; and
10. Section 7.20(b) of the Loan Agreement shall be deleted in
its entirety.
11. Section 8 of the Loan Agreement shall be amended to add
three (3) new Sub-Sections as set forth below:
8.16 If Borrower fails to engage on or before April 30,
1998 and continue to utilize and abide by the recommendations of
Argus Management or another financial and management consultant
acceptable to Foothill in connection with the management and
operation of Borrower's business; or
8.17 If Borrower and/or Argus Management or the financial
and management consultant acceptable to Foothill engaged by
Borrower submits a weekly actual to budget receipts and expenses
report in accordance with Section 6.3.(b) which shows on the first
business day of any week, commencing on May 11, 1998, for the
immediately preceding four (4) week period: (a) the four (4) week
total of the actual receipts as of the first business day of each
week during the prior four (4) week period to be ten (10%) percent
or more below the four (4) week cumulative projected receipts for
such period as shown in the report referenced in 6.3.(b) above; or
(b) the four (4) week total of the actual expenditures as of the
first business day of each week during the prior four (4) week
period to be ten (10%) percent or more below the four (4) week
cumulative projected expenditures for such period as shown in the
report referenced in 6.3.(b) above;
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8.18 If Borrower fails to provide Foothill, in form,
scope and substance satisfactory to Foothill, with an intercreditor
and subordination agreement executed by Bankers Trust Company on
or before July 31, 1998 in connection with the existing unsecured
indebtedness owed by Borrower to Bankers Trust.
12. The description contained on Schedule R-1 Real Property
Collateral shall be deleted and the following inserted in lieu
thereof:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ which property
shall be mortgaged to Foothill on or before June 30, 1998
13. Borrower acknowledges that it is in violation of Section
6.3(a) of the Loan Agreement as a result of its failure to provide
monthly financial statements for the months of January and February
1998 on or before March 15, 1998 and that it has further violated
Section 6.3(a) of the Loan Agreement as a result of its failure to
provide an annual financial statement for the 1997 fiscal year on
or before March 30, 1998. Foothill agrees to waive compliance with
Section 6.3(a) as to the annual financial statement as of December
31, 1997 and as to the monthly statements through March 31, 1998.
14. Borrower acknowledges that it is in violation of Section
7.1(b) of the Loan Agreement as a result of its indebtedness to
Bankers Trust Company. Foothill agrees to waive compliance with
Section 7.1(b) as to the above violation through July 31, 1998.
15. Borrower acknowledges that it is in violation of Section
7.20(a) and 7.20(b) of the Loan Agreement. Foothill agrees to
waive compliance with Section 7.20(a) and 7.20(b) as to the above
violation as of December 31, 1997.
16. Borrower acknowledges that it is in violation of Section
7.21 of the Loan Agreement. Foothill agrees to waive compliance
with Section 7.21 as to the above violation as of December 31,
1997.
17. Except as herein amended, all of the terms and provisions
of the Loan Agreement shall remain in full force and effect.
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18. Borrower and Lender agree that this First Amendment to
Loan and Security Agreement has been prepared by the mutual effort
of both parties and that in the event of a conflict or interpretive
question with respect to any term, provision or section contained
in this First Amendment to Loan and Security Agreement or the
September 29, 1997 Loan and Security Agreement, that this First
Amendment to Loan and Security Agreement and the September 29, 1997
Loan and Security Agreement shall not be construed more strictly
against any one party than any other party; it being agreed that
both Borrower and Lender have equally negotiated the terms hereof
and thereof.
The date of execution of this First Amendment to Loan and
Security Agreement by Borrower is April , 1998.
LENDER: BORROWER:
FOOTHILL CAPITAL CORPORATION AID AUTO STORES, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Assistant Vice President Title: President
▇▇▇▇ AUTOMOTIVE WAREHOUSE, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President
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