EXHIBIT 10.1.35
CONSENT, dated as of January 26, 1999 (this "CONSENT"), under the
Revolving Credit, Term Loan and Guarantee Agreement, dated as of February 2,
1998 (as heretofore amended, supplemented or otherwise modified, the "CREDIT
AGREEMENT"), among A.P.S., Inc., a Delaware corporation and debtor-in-possession
(the "BORROWER"), APS Holding Corporation, a Delaware corporation ("HOLDING"),
each of the direct and indirect Subsidiaries of the Borrower party thereto
(together with Holding, the "GUARANTORS"), each of which Guarantors is a
debtor-in-possession (the Borrower and the Guarantors, collectively, the
"DEBTORS"), the several banks and other financial institutions from time to time
party thereto (collectively, the "LENDERS"), and The Chase Manhattan Bank, as
agent for the Lenders (in such capacity, the "AGENT").
W I T N E S S E T H :
WHEREAS, the Borrower, the Guarantors, the Lenders and the Agent
are parties to the Credit Agreement;
WHEREAS, on January 11, 1999 the Debtors filed with the Bankruptcy
Court a "Motion For Orders: (A) Authorizing Sale of Certain Fixtures, Inventory,
Receivables, Equipment, Trademarks, and Other Assets Free and Clear of Liens and
Encumbrances, Pursuant to Section 363 of the Bankruptcy Code; (B) Authorizing
Assumption and Assignment of Certain Nonresidential Real Property Leases and
Other Executory Contracts Pursuant to Section 365 of the Bankruptcy Code; (C)
Approving Agreements to Provide Limited Services to the Purchaser Pursuant to
Section 363 of the Bankruptcy Code; (D) Approving Break-Up Fee and Expense
Reimbursement; (E) Approving Terms for Submission of Competing Offers; and (F)
Granting Related Relief" (the "AUTO PARTS EXPRESS SALE MOTION");
WHEREAS, pursuant to, and as more fully described in, the Auto Parts
Express Sale Motion, the Debtors propose to sell (the "AUTO PARTS EXPRESS SALE")
certain of their assets related to four (4) of the Debtors' regional
distribution centers and approximately 71 of the Debtors' stores and installers
service warehouses associated with such distribution centers, including without
limitation, inventory, accounts receivable, equipment and fixtures, pursuant to
an Asset Purchase Agreement, dated as of January 11, 1999 (including any
non-material amendment thereof, the "AUTO PARTS EXPRESS ASSET PURCHASE
AGREEMENT"), among certain of the Debtors and Auto Parts Express, LLC;
WHEREAS, in connection with the Auto Parts Express Sale Motion and
the Bankruptcy Court hearing to be held on January 29, 1999 to consider the Auto
Parts Express Sale, the Borrower has requested that the Lenders consent under
subsection 8.6 of the Credit Agreement to permit the Auto Parts Express Sale
pursuant to the Auto Parts Express Asset Purchase Agreement;
WHEREAS, on October 9, 1998, the Bankruptcy Court entered an order
(the "STORE SALES ORDER"), approving the establishment of certain notice and
other procedures in connection with the potential sale of assets (including
without limitation, certain joint venture interests held by the Debtors)
associated with certain of the Debtors' store locations ("STORE SALES");
WHEREAS, pursuant to a Consent, dated as of October 8, 1998 (the
"EXISTING STORE SALES CONSENT"), the Lenders consented under subsection 8.6 of
the Credit Agreement to permit Store Sales, subject to the Borrower's compliance
with certain minimum price and other conditions as set forth in the Existing
Store Sales Consent;
WHEREAS, based upon the terms negotiated or being negotiated with
respect to several potential Store Sales, the Borrower has requested that the
Lenders modify the minimum price and other conditions to Store Sales set forth
in the Existing Store Sales Consent;
WHEREAS, pursuant to the Store Sales Order, the Borrower and General
Parts, Inc. have entered into a Stock and Asset Purchase Agreement, dated as of
January 14, 1999 (including any non-material amendment thereof, the "JOINT
VENTURE SALE AGREEMENT"), with respect to the sale of the Capital Stock owned by
the Debtors of certain corporations relating to the operation of approximately
seven (7) store locations, together with certain promissory notes payable by
such corporations to the Debtors (the "JOINT VENTURE SALE");
WHEREAS, the Borrower has requested that the Lenders consent under
subsection 8.6 of the Credit Agreement to permit the Joint Venture Sale pursuant
to the Joint Venture Sale Agreement because the nature of the assets being sold
pursuant to the Joint Venture Sale was not contemplated by the Existing Store
Sales Consent; and
WHEREAS, the Lenders are willing to agree to such requested
modification and consents, but only upon the terms and conditions of this
Consent;
NOW THEREFORE, in consideration of the premises and for other good
and valuable consideration the receipt of which is hereby acknowledged, the
Borrower, the Guarantors, the Lenders and the Agent hereby agree as follows:
1.DEFINED TERMS. Capitalized terms used herein and not otherwise
defined shall have their respective meanings set forth in the Credit Agreement.
2.CONSENTS UNDER SUBSECTION 8.6 (LIMITATION ON SALE OF ASSETS).
(a) Effective as of the date hereof, but subject to clauses (b) and (c) below,
the Lenders hereby consent under subsection 8.6 of the Credit Agreement solely
to the extent necessary to permit the Borrower:
(i) to consummate (A) the Auto Parts Express Sale in accordance with
the terms of the Auto Parts Express Asset Purchase Agreement and (B) the
Joint Venture Sale in accordance with the terms of the Joint Venture Sale
Agreement; and
(ii) to consummate Store Sales (exclusive of the Asset Sales
otherwise permitted under subsection 8.6(c) of the Credit Agreement) in
accordance with the terms of the Store Sales Order and as set forth below.
(b) The consents set forth in clause (a) above are conditioned upon
the following: (i) within one Business Day after the receipt of the Net Cash
Proceeds of the Auto Parts Express Sale, the Joint Venture Sale or any Store
Sale, as the case may be, the Borrower shall apply an amount equal to such Net
Cash Proceeds in accordance with subsection 4.8(d) of the Credit Agreement,
PROVIDED that any Excess Amounts generated from the Auto Parts Express Sale, the
Joint Venture Sale or any such Store Sale shall be used to fund the Cash Account
and repay the Tranche B Loans in accordance with Section 7 of the Fourth
Amendment, Sixth Waiver and Agreement, dated as of the date hereof, to the
Credit Agreement and (ii) no Default or Event of Default shall then have
occurred and be continuing or would result from consummation of the Auto Parts
Express Sale, the Joint Venture Sale or such Store Sale, as the case may be.
(c) The consent to Store Sales set forth in clause (a)(ii) above is
further conditioned upon the following: notwithstanding anything to the contrary
contained in the Existing Store Sales Consent, (i) the aggregate purchase price
for all Store Sales, inclusive of Store Sales permitted under the Existing Store
Sales Consent and consummated prior to the date hereof, shall not exceed
$12,000,000 and (ii) for any Store Sale consummated on or after the date hereof,
the purchase price for such Store Sale shall be payable in cash at closing and
shall not be less than the greater of (A) the sum of (x) 50% of the book value
of all inventory sold pursuant to such Store Sale, (y) 45% of the book value of
all accounts receivable sold pursuant to such Store Sale which are outstanding
less than 60 days as of the closing date of such Store Sale and (z) 30% of the
book value of all fixed assets sold pursuant to such Store Sale and (B) with
respect to any such Store Sale set forth on Schedule I attached hereto, the sum
of the percentages of the book value (or the stated dollar amounts, as the case
may be) for such inventory, accounts receivable and fixed assets set forth for
such Store Sale on such Schedule I in the column entitled "Pricing".
3. REPRESENTATIONS AND WARRANTIES; NO DEFAULT. After giving effect
to this Consent, the Debtors hereby represent and warrant that all
representations and warranties contained in the Credit Agreement are true and
correct as of the date hereof (unless stated to relate to a specific earlier
date, in which case, such representations and warranties shall be true and
correct in all material respects as of such earlier date) and that no Default or
Event of Default shall have occurred and be continuing or would result from the
execution and delivery of this Consent.
4. CONDITIONS TO EFFECTIVENESS OF THIS CONSENT. This Consent shall
become effective as of the date hereof upon receipt by the Agent of counterparts
of this Consent duly executed by the Borrower, the Guarantors and the Required
Tranche A Lenders.
5. CONTINUING EFFECT; NO OTHER AMENDMENTS OR WAIVERS. Except as
expressly amended or waived pursuant to this Consent, the Credit Agreement is
and shall continue to be in
full force and effect in accordance with its terms, and this Consent shall not
constitute the Lenders' consent or indicate their willingness to consent to any
other amendment, modification or waiver of the Credit Agreement or the other
Loan Documents, including without limitation, any further amendment,
modification or waiver of subsection 8.6 of the Credit Agreement.
6. MISCELLANEOUS.
(a) This Consent may be executed by the parties hereto on one or
more counterparts, and all of such counterparts shall be deemed to constitute
one and the same instrument. This Consent may be delivered by facsimile
transmission of the relevant signature pages hereof.
(b) This Consent shall be governed by, and construed and
interpreted in accordance with, the law of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this Consent to
be executed and delivered by their respective duly authorized officers as of the
date first above written.
A.P.S., INC.
By:_____________________________
Title:
GUARANTORS:
APS HOLDING CORPORATION
BIG A AUTO PARTS, INC.
AUTOPARTS FINANCE COMPANY, INC.
APS SUPPLY, INC.
AMERICAN PARTS SYSTEM, INC.
A.P.S. MANAGEMENT SERVICES, INC.
INSTALLERS' SERVICE WAREHOUSE, INC.
PARTS, INC.
PRESATT, INC.
By:_______________________
Title:
THE CHASE MANHATTAN BANK, AS LENDER,
ISSUING BANK AND AGENT
By:_______________________
Title:
BANK ONE, N.A.
By:_________________________
Title:
CHASE SECURITIES INC., AS AGENT FOR
THE CHASE MANHATTAN BANK
By:_________________________
Title:
D.K. ACQUISITION PARTNERS, L.P.
BY: ▇.▇. ▇▇▇▇▇▇▇▇ & CO., ITS GENERAL PARTNER
By:_________________________
Title:
FOOTHILL CAPITAL CORPORATION
By:_________________________
Title:
▇▇▇▇▇▇▇ SACHS CREDIT PARTNERS L.P.
By:_________________________
Title:
PPM AMERICA, INC., AS AGENT FOR
PPM AMERICA SPECIAL INVESTMENT
FUND, L.P.
By:_________________________
Title:
QUANTUM PARTNERS LDC
By:_________________________
Title:
SOCIETE GENERALE
By:_________________________
Title:
▇▇▇▇▇ FARGO BANK (TEXAS), NATIONAL
ASSOCIATION
By:_________________________
Title: