AMERICAN TIRE DISTRIBUTORS INC - 10-Q - 20041115 - EXHIBIT_4
EXHIBIT 4.1
FIFTH SUPPLEMENTAL INDENTURE, dated as of July 30, 2004 (the "FIFTH
SUPPLEMENTAL INDENTURE"), among AMERICAN TIRE DISTRIBUTORS, INC., a
Delaware corporation (formerly known as Heafner Tire Group, Inc. and
successor to The J.H. Heafner Company, Inc.) (the "COMPANY"), Texas Market
Tire, Inc., a Texas corporation ("TEXAS MARKET TIRE"), Texas Market Tire
Holdings I, Inc., a Texas corporation ("TMT HOLDINGS") (Texas Market Tire
and TMT Holdings collectively referred to as the "NEW SUBSIDIARY
GUARANTORS"), each other Subsidiary Guarantor under the Indenture referred
to below (collectively, the "SUBSIDIARY GUARANTORS"), WACHOVIA BANK,
NATIONAL ASSOCIATION, f/k/a First Union National Bank, as Trustee (the
"TRUSTEE"), under the Indenture referred to below.
WITNESSETH:
WHEREAS, the Company, the then existing Subsidiary Guarantors and
the Trustee have heretofore executed and delivered an Indenture, dated as of
December 1, 1998, as supplemented by the First Supplemental Indenture dated as
of February 22, 1999, the Second Supplemental Indenture dated as of May 14,
1999, the Third Supplemental Indenture dated as of May 25, 2000 and the Fourth
Supplemental Indenture dated as of March 27, 2002 (as so supplemented, the
"INDENTURE"), providing, among other things, for the authentication, delivery
and administration of the Company's 10% Senior Notes Due 2008, Series D (the
"SECURITIES").
WHEREAS, Section 4.12 of the Indenture provides that the Company is
required to cause each domestic Restricted Subsidiary (other than an Immaterial
Subsidiary that is neither a borrower nor a guarantor under the Credit Facility)
to execute and deliver to the Trustee a Guaranty Agreement pursuant to which
such Restricted Subsidiary will Guarantee payment of the Securities on the same
terms and conditions as those set forth in Article 10 of the Indenture;
WHEREAS, the Company is causing each of the New Subsidiary
Guarantors to execute this Supplemental Indenture in order to comply with the
terms of Section 4.12 of the Indenture and each of the New Subsidiary Guarantors
intends thereby to become bound as a Subsidiary Guarantor; and
WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee, the
existing Subsidiary Guarantors and the Company are authorized to execute and
deliver this Supplemental Indenture amending the Indenture, without the consent
of any Holder (as defined in the Indenture);
NOW, THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt of which is hereby acknowledged, the New
Subsidiary Guarantors, the Company, the existing Subsidiary Guarantors and the
Trustee
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mutually covenant and agree for the equal and ratable benefit of the holders of
the Securities as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 Defined Terms. As used in this Supplemental Indenture,
terms defined in the Indenture or in the preamble or recital hereto are used
herein as therein defined, except that the term "Holders" in this Supplemental
Indenture shall refer to the term "Holders" as defined in the Indenture and the
Trustee acting on behalf or for the benefit of such Holders. The words "herein,"
"hereof" and "hereby" and other words of similar import used in this
Supplemental Indenture refer to this Supplemental Indenture as a whole and not
to any particular section hereof.
ARTICLE II
AGREEMENT TO BE BOUND; GUARANTEE
SECTION 2.1 Agreement to be Bound. Each New Subsidiary Guarantor
hereby becomes a party to the Indenture as a Subsidiary Guarantor and as such
will have all of the rights and be subject to all of the obligations and
agreements of a Subsidiary Guarantor under the Indenture. The New Subsidiary
Guarantors agree to be bound by all of the provisions of the Indenture
applicable to a Subsidiary Guarantor and to perform all of the obligations and
agreements of a Subsidiary Guarantor under the Indenture.
SECTION 2.2 Guarantee. The New Subsidiary Guarantors hereby fully,
unconditionally and irrevocably guarantee, jointly and severally with each other
Subsidiary Guarantor, to each Holder of the Securities and the Trustee and its
successors and assigns, the full and punctual payment when due, whether at
maturity, by acceleration, by redemption or otherwise and within applicable
grace periods, of the Obligations pursuant to Article 10 of the Indenture and on
the same terms and conditions of the Indenture.
ARTICLE III
MISCELLANEOUS
SECTION 3.1 Notices. All notices and other communications to the New
Subsidiary Guarantors shall be given as provided in Section 11.02 of the
Indenture.
SECTION 3.2 Parties. Nothing expressed or mentioned herein is
intended or shall be construed to give any Person, firm or corporation, other
than the Holders and the Trustee, any legal or equitable right, remedy or claim
under or in respect of this Supplemental Indenture or the Indenture or any
provision herein or therein contained.
SECTION 3.3 Governing Law. This Supplemental Indenture shall be
governed by the laws of the State of New York, but without giving effect to
applicable
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principles of conflicts of law to the extent that the application of the laws of
another jurisdiction would be required thereby.
SECTION 3.4 Severability Clause. In case any provision in this
Supplemental Indenture shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby and such provision shall be ineffective only to the
extent of such invalidity, illegality or unenforceability.
SECTION 3.5 Ratification of Indenture; Supplemental Indenture Part
of Indenture. Except as expressly supplemented hereby, the Indenture is in all
respects ratified and confirmed and all the terms, conditions and provisions
thereof shall remain in full force and effect. This Supplemental Indenture shall
form a part of the Indenture for all purposes, and every Holder of Securities
heretofore or hereafter authenticated and delivered shall be bound hereby. The
Trustee makes no representation or warranty as to the validity or sufficiency of
this Supplemental Indenture.
SECTION 3.6 Counterparts. The parties hereto may sign one or more
copies of this Supplemental Indenture in counterparts, all of which together
shall constitute one and the same agreement.
SECTION 3.7 Headings. The headings of the Articles and the sections
in this Supplemental Indenture are for convenience of reference only and shall
not be deemed to alter or affect the meaning or interpretation of any provisions
hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Fifth
Supplemental Indenture to be duly executed as of the date first above written.
AMERICAN TIRE DISTRIBUTORS, INC.,
as the Company
By: /s/ Richard P. Johnson
-------------------------------------
Name: Richard P. Johnson
Title: Chairman & Chief Executive Officer
TEXAS MARKET TIRE, INC.,
as a New Subsidiary Guarantor
By: /s/ Richard P. Johnson
-------------------------------------
Name: Richard P. Johnson
Title: Chairman
By: /s/ J. Michael Gaither
-------------------------------------
Name: J. Michael Gaither
Title: Vice President and Secretary
TEXAS MARKET TIRE HOLDINGS I, INC.,
as a New Subsidiary Guarantor
By: /s/ Richard P. Johnson
-------------------------------------
Name: Richard P. Johnson
Title: Chairman
By: /s/ J. Michael Gaither
-------------------------------------
Name: J. Michael Gaither
Title: Vice President and Secretary
Signatures continued on following page
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T.O. HAAS TIRE COMPANY, INC.,
as a Subsidiary Guarantor
By: /s/ Richard P. Johnson
-------------------------------------
Name: Richard P. Johnson
Title: Chairman
By: /s/ J. Michael Gaither
-------------------------------------
Name: J. Michael Gaither
Title: Vice President and Secretary
T.O. HAAS HOLDING CO., INC.,
as a Subsidiary Guarantor
By: /s/ Richard P. Johnson
-------------------------------------
Name: Richard P. Johnson
Title: Chairman
By: /s/ J. Michael Gaither
-------------------------------------
Name: J. Michael Gaither
Title: Vice President and Secretary
THE SPEED MERCHANT, INC.,
as a Subsidiary Guarantor
By: /s/ Richard P. Johnson
-------------------------------------
Name: Richard P. Johnson
Title: Chairman
By: /s/ J. Michael Gaither
-------------------------------------
Name: J. Michael Gaither
Title: Vice President and Secretary
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Trustee
By: /s/ Terry Hefner
-------------------------------------
Name: Terry Hefner
Title: Vice President
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EXHIBIT 4.2
SIXTH SUPPLEMENTAL INDENTURE, dated as of September 1, 2004 (the "SIXTH
SUPPLEMENTAL INDENTURE"), among AMERICAN TIRE DISTRIBUTORS, INC., a
Delaware corporation (formerly known as Heafner Tire Group, Inc. and
successor to The J.H. Heafner Company, Inc.) (the "COMPANY"), Target Tire,
Inc., a North Carolina corporation (the "NEW SUBSIDIARY GUARANTOR"), each
other Subsidiary Guarantor under the Indenture referred to below
(collectively, the "SUBSIDIARY GUARANTORS"), WACHOVIA BANK, NATIONAL
ASSOCIATION, f/k/a First Union National Bank, as Trustee (the "TRUSTEE"),
under the Indenture referred to below.
WITNESSETH:
WHEREAS, the Company, the then existing Subsidiary Guarantors and
the Trustee have heretofore executed and delivered an Indenture, dated as of
December 1, 1998, as supplemented by the First Supplemental Indenture dated as
of February 22, 1999, the Second Supplemental Indenture dated as of May 14,
1999, the Third Supplemental Indenture dated as of May 25, 2000, the Fourth
Supplemental Indenture dated as of March 27, 2002 and the Fifth Supplemental
Indenture dated as of July 30, 2004 (as so supplemented, the "INDENTURE"),
providing, among other things, for the authentication, delivery and
administration of the Company's 10% Senior Notes Due 2008, Series D (the
"SECURITIES").
WHEREAS, Section 4.12 of the Indenture provides that the Company is
required to cause each domestic Restricted Subsidiary (other than an Immaterial
Subsidiary that is neither a borrower nor a guarantor under the Credit Facility)
to execute and deliver to the Trustee a Guaranty Agreement pursuant to which
such Restricted Subsidiary will Guarantee payment of the Securities on the same
terms and conditions as those set forth in Article 10 of the Indenture;
WHEREAS, the Company is causing the New Subsidiary Guarantor to
execute this Supplemental Indenture in order to comply with the terms of Section
4.12 of the Indenture and the New Subsidiary Guarantor intends thereby to become
bound as a Subsidiary Guarantor; and
WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee, the
existing Subsidiary Guarantors and the Company are authorized to execute and
deliver this Supplemental Indenture amending the Indenture, without the consent
of any Holder (as defined in the Indenture);
NOW, THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt of which is hereby acknowledged, the New
Subsidiary Guarantor, the Company, the existing Subsidiary Guarantors and the
Trustee mutually covenant and agree for the equal and ratable benefit of the
holders of the Securities as follows:
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ARTICLE I
DEFINITIONS
SECTION 1.1 Defined Terms. As used in this Supplemental Indenture,
terms defined in the Indenture or in the preamble or recital hereto are used
herein as therein defined, except that the term "Holders" in this Supplemental
Indenture shall refer to the term "Holders" as defined in the Indenture and the
Trustee acting on behalf or for the benefit of such Holders. The words "herein,"
"hereof" and "hereby" and other words of similar import used in this
Supplemental Indenture refer to this Supplemental Indenture as a whole and not
to any particular section hereof.
ARTICLE II
AGREEMENT TO BE BOUND; GUARANTEE
SECTION 2.1 Agreement to be Bound. The New Subsidiary Guarantor
hereby becomes a party to the Indenture as a Subsidiary Guarantor and as such
will have all of the rights and be subject to all of the obligations and
agreements of a Subsidiary Guarantor under the Indenture. The New Subsidiary
Guarantor agrees to be bound by all of the provisions of the Indenture
applicable to a Subsidiary Guarantor and to perform all of the obligations and
agreements of a Subsidiary Guarantor under the Indenture.
SECTION 2.2 Guarantee. The New Subsidiary Guarantor hereby fully,
unconditionally and irrevocably guarantees, jointly and severally with each
other Subsidiary Guarantor, to each Holder of the Securities and the Trustee and
its successors and assigns, the full and punctual payment when due, whether at
maturity, by acceleration, by redemption or otherwise and within applicable
grace periods, of the Obligations pursuant to Article 10 of the Indenture and on
the same terms and conditions of the Indenture.
ARTICLE III
MISCELLANEOUS
SECTION 3.1 Notices. All notices and other communications to the New
Subsidiary Guarantor shall be given as provided in Section 11.02 of the
Indenture.
SECTION 3.2 Parties. Nothing expressed or mentioned herein is
intended or shall be construed to give any Person, firm or corporation, other
than the Holders and the Trustee, any legal or equitable right, remedy or claim
under or in respect of this Supplemental Indenture or the Indenture or any
provision herein or therein contained.
SECTION 3.3 Governing Law. This Supplemental Indenture shall be
governed by the laws of the State of New York, but without giving effect to
applicable principles of conflicts of law to the extent that the application of
the laws of another jurisdiction would be required thereby.
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SECTION 3.4 Severability Clause. In case any provision in this
Supplemental Indenture shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby and such provision shall be ineffective only to the
extent of such invalidity, illegality or unenforceability.
SECTION 3.5 Ratification of Indenture; Supplemental Indenture Part
of Indenture. Except as expressly supplemented hereby, the Indenture is in all
respects ratified and confirmed and all the terms, conditions and provisions
thereof shall remain in full force and effect. This Supplemental Indenture shall
form a part of the Indenture for all purposes, and every Holder of Securities
heretofore or hereafter authenticated and delivered shall be bound hereby. The
Trustee makes no representation or warranty as to the validity or sufficiency of
this Supplemental Indenture.
SECTION 3.6 Counterparts. The parties hereto may sign one or more
copies of this Supplemental Indenture in counterparts, all of which together
shall constitute one and the same agreement.
SECTION 3.7 Headings. The headings of the Articles and the sections
in this Supplemental Indenture are for convenience of reference only and shall
not be deemed to alter or affect the meaning or interpretation of any provisions
hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Sixth
Supplemental Indenture to be duly executed as of the date first above written.
AMERICAN TIRE DISTRIBUTORS, INC.,
as the Company
By: /s/ Richard P. Johnson
-------------------------------------
Name: Richard P. Johnson
Title: Chairman & Chief Executive Officer
TARGET TIRE, INC.,
as a New Subsidiary Guarantor
By: /s/ Richard P. Johnson
-------------------------------------
Name: Richard P. Johnson
Title: Chairman
By: /s/ J. Michael Gaither
-------------------------------------
Name: J. Michael Gaither
Title: Vice President and Secretary
T.O. HAAS TIRE COMPANY, INC.,
as a Subsidiary Guarantor
By: /s/ Richard P. Johnson
-------------------------------------
Name: Richard P. Johnson
Title: Chairman
By: /s/ J. Michael Gaither
-------------------------------------
Name: J. Michael Gaither
Title: Vice President and Secretary
Signatures continued on following page
- 4 -
T.O. HAAS HOLDING CO., INC.,
as a Subsidiary Guarantor
By: /s/ Richard P. Johnson
-------------------------------------
Name: Richard P. Johnson
Title: Chairman
By: /s/ J. Michael Gaither
-------------------------------------
Name: J. Michael Gaither
Title: Vice President and Secretary
THE SPEED MERCHANT, INC.,
as a Subsidiary Guarantor
By: /s/ Richard P. Johnson
-------------------------------------
Name: Richard P. Johnson
Title: Chairman
By: /s/ J. Michael Gaither
-------------------------------------
Name: J. Michael Gaither
Title: Vice President and Secretary
WACHOVIA BANK, NATIONAL
ASSOCIATION, as Trustee
By: /s/ Patrick L. Teague
-------------------------------------
Name: Patrick L. Teague
Title: Vice President
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EXHIBIT 10.1
SECOND AMENDMENT TO THIRD AMENDED
AND RESTATED LOAN AND SECURITY AGREEMENT
THIS SECOND AMENDMENT TO THIRD AMENDED AND RESTATED LOAN AND SECURITY
AGREEMENT (this "Amendment") is made and entered into this 1st day of September,
2004, by and among AMERICAN TIRE DISTRIBUTORS, INC., a Delaware corporation
("American Tire"), THE SPEED MERCHANT, INC., a California corporation ("Speed
Merchant"), T.O. HAAS HOLDING CO., INC., a Nebraska corporation ("Haas
Holding"), T.O. HAAS TIRE COMPANY, INC., a Nebraska corporation ("Haas Tire"),
TEXAS MARKET TIRE HOLDINGS I, INC., a Texas corporation ("Holdings"), and TEXAS
MARKET TIRE, INC., a Texas corporation doing business as Big State Tire Supply
("Big State"; American Tire, Speed Merchant, Haas Holding, Haas Tire, Holdings
and Big State are collectively referred to herein as "Borrowers" and
individually as a "Borrower"), the various financial institutions listed on the
signature pages hereto ("Lenders"), WACHOVIA BANK, NATIONAL ASSOCIATION, as
syndication agent (together with its successors in such capacity, "Syndication
Agent"), THE CIT GROUP/BUSINESS CREDIT, INC., as documentation agent (together
with its successors in such capacity, "Documentation Agent"), and FLEET CAPITAL
CORPORATION, as administrative and collateral agent for the Lenders (together
with its successors and assigns in such capacity, "Administrative Agent").
RECITALS:
Borrowers, Administrative Agent, Syndication Agent, Documentation Agent
and Lenders are parties to a certain Third Amended and Restated Loan and
Security Agreement dated as of March 19, 2004, as amended by that certain First
Amendment to Third Amended and Restated Loan and Security Agreement dated April
2, 2004, and as supplemented by that certain Joinder Agreement and Supplement to
Loan Agreement dated July 30, 2004 (as at any time amended, modified,
supplemented or restated, the "Loan Agreement") pursuant to which Lenders have
made certain revolving credit loans to Borrowers.
The parties desire to amend the Loan Agreement as hereinafter set forth.
NOW, THEREFORE, for TEN DOLLARS ($10.00) in hand paid and other good and
valuable consideration, the receipt and sufficiency of which are hereby
severally acknowledged, the parties hereto, intending to be legally bound
hereby, agree as follows:
1. DEFINITIONS. All capitalized terms used in this Amendment, unless
otherwise defined herein, shall have the meaning ascribed to such terms in the
Loan Agreement.
2. AMENDMENTS TO LOAN AGREEMENT. The Loan Agreement is hereby amended as
follows:
(a) By adding new definitions of "Restricted Subsidiary," "Target
Tire," "Target Tire Lender," and "Target Tire Vendors" to Section 1.1 of
the Loan Agreement, in proper alphabetical sequence, that read as follows:
"Restricted Subsidiary" means Target Tire until Target Tire is
joined to this Agreement pursuant to Section 9.10 hereof.
"Target Tire" means Target Tire, Inc., a North Carolina
corporation.
"Target Tire Lender" means Wachovia Bank, National
Association, a national banking association, in its capacity as the
existing revolving credit lender to Target Tire.
"Target Tire Vendors" means Cooper Tire & Rubber Company,
Michelin North America, Inc., Pirelli Armstrong Tire Corporation,
Bridgestone/Firestone, Inc., and Bridgestone/Firestone North
American Tire, LLC and each other vendor of Target Tire that has a
Lien on any property of Target Tire.
(b) By deleting the word "and" that is contained immediately prior
to the phrase "(ii) Interest Rate Protection Agreements" in the definition
of "Banking Relationship Debt" that is contained in Section 1.1 of the
Loan Agreement, by deleting the period that is contained at the end of the
definition of "Banking Relationship Debt," and by adding a new clause
(iii) to the end of the definition of "Banking Relationship Debt" that
reads as follows:
, and (iii) merchant or corporate credit or debit cards.
(c) By deleting the word "and" that is contained immediately prior
to the phrase "(h) such Inventory" in the definition of "Eligible
Inventory" that is contained in Section 1.1 of the Loan Agreement, by
deleting the period that is contained at the end of the definition of
"Eligible Inventory," and by adding a new clause (i) to the end of the
definition of "Eligible Inventory" that reads as follows:
; and (i) such Inventory is not owned by Target Tire, until
such time as Target Tire is joined to this Agreement pursuant to
SECTION 9.10 hereof.
(d) By deleting the word "and" that is contained immediately prior
to the phrase "(q) such Receivable" in the definition of "Eligible
Receivable" that is contained in Section 1.1 of the Loan Agreement, by
deleting the period that is contained at the end of the definition of
"Eligible Receivable," and by adding a new clause (r) to the end of the
definition of "Eligible Receivable" that reads as follows:
; and (r) such Receivable is not owned by Target Tire, until
such time as Target Tire is joined to this Agreement pursuant to
SECTION 9.10 hereof.
(e) By deleting the definition of "Fixed Charge Coverage Ratio" that
is contained in Section 1.1 of the Loan Agreement and by substituting the
following new definition in lieu thereof:
2
"Fixed Charge Coverage Ratio" means, for any specified period,
the ratio of (i) EBITDA of American Tire and its Consolidated
Subsidiaries for such period MINUS cash taxes paid and Capital
Expenditures (other than Financed Capex) made by American Tire and
its Consolidated Subsidiaries determined on a consolidated basis
during such period, PLUS, to the extent deducted in the computation
of Net Income of American Tire and its Consolidated Subsidiaries for
such period, the amount of any non-cash charges taken by American
Tire and its Consolidated Subsidiaries during such period relating
solely to unamortized financing costs incurred by them in connection
with the Existing Loan Agreement to (ii) the sum of interest expense
(excluding any adjustment to interest expense related to a change in
fair value of any interest rate swap or similar derivative
instrument), PLUS (without duplication) actual principal payments
(whether scheduled, mandatory or voluntary) on Debt (other than (i)
the Loans, including the Bridge Loan and (ii) Debt owing by Target
Tire to Target Tire Lender including any Debt owing by American Tire
to Target Tire Lender under a Guaranty by American Tire of Debt
owing by Target Tire to Target Tire Lender), PLUS (without
duplication) Restricted Payments of the type described in CLAUSE
(a), (b) or (c) of the definition of such term, PLUS (without
duplication) Restricted Distributions of the type described in
CLAUSE (a) or (b) of such term, in each case of American Tire and
its Consolidated Subsidiaries determined on a consolidated basis for
the same period.
(f) By adding the word "or" to the definition of "Termination Date"
that is contained in Section 1.1 of the Loan Agreement, immediately
following the phrase "February 15, 2008,".
(g) By deleting Section 9.8(a) of the Loan Agreement and by
substituting the following new Section 9.8(a) in lieu thereof:
(a) Use the proceeds of the Loans only for working capital and
general business purposes of the Borrowers (and not for working
capital and general business purposes of any Restricted Subsidiary),
to the extent not prohibited by the terms of this Agreement,
including payment of interest on the Senior Notes, payment of
dividends and distributions on or with respect to, and redemptions
of, the KS Preferred, Permitted Senior Note Repurchases, Permitted
Vendor Note Payments and Permitted Acquisitions, in each case in
accordance with the provisions of this Agreement, and
(h) By adding the following new subsection (d) to Section 10.1 of
the Loan Agreement that reads as follows:
(d) Financial Statements of Target Tire. Prior to the date on
which Target Tire is joined to this Agreement pursuant to SECTION
9.10 hereof, as soon as available after the end of each Fiscal
Month, but in any
3
event within 30 days after the end of each Fiscal Month (or 45 days
after the end of any such Fiscal Month that is the last Fiscal Month
of a Fiscal Quarter), copies of the unaudited consolidated balance
sheet of Target Tire and its Consolidated Subsidiaries as at the end
of such Fiscal Month and the related unaudited consolidated
statement of income and the related consolidated statement of cash
flows for Target Tire and its Consolidated Subsidiaries for such
Fiscal Month and for the portion of the Fiscal Year through such
Fiscal Month, certified by a Financial Officer as presenting fairly
the financial condition and results of operations of Target Tire
(subject to normal year-end audit adjustments) for the applicable
period(s); all such financial statements (i)to be complete and
correct in all material respects and prepared in accordance with
GAAP (except for the omission of notes and for the effect of normal
year-end audit adjustments) applied consistently throughout the
periods reflected therein and (ii) to be accompanied by a monthly
and year-to-date comparison to Target Tire's prior Fiscal Year's
performance.
(i) By deleting the word "and" that is contained immediately prior
to clause (g) of SECTION 11.9 of the Loan Agreement, by deleting the
period that is contained at the end of clause (g) and by adding a new
clause (h) to the end of SECTION 11.9 of the Loan Agreement that reads as
follows:
, and (h) Liens in favor of (i) Target Tire Lender in all
inventory, accounts receivable, intangibles and balances collateral
of Target Tire pursuant to that certain Loan and Security Agreement
dated November 1, 2001, between Target Tire and Target Tire Lender
(as amended most recently by that certain Fifth Amendment to Loan
and Security Agreement and Second Amendment to Master Note dated as
of June 28, 2004), and (ii) Target Tire Vendors in such vendor's
branded tire inventory (and the proceeds thereof) that is sold to
Target Tire by such vendor, until such time as Target Tire is joined
to this Agreement pursuant to SECTION 9.10 hereof, at which time the
Liens in favor of Target Tire Lender and Target Tire Vendors shall
no longer be permitted under this SECTION 11.9(h) (except that Liens
in favor of a Target Tire Vendor may be permitted under SECTION
11.9(f) as Unsubordinated Vendor Liens and may be permitted as
Subordinated Vendor Liens upon the execution by such Target Tire
Vendor of a Vendor Lien Subordination Agreement).
(j) By deleting Section 11.11 of the Loan Agreement and by
substituting the following new Section 11.11 in lieu thereof:
Section 11.11 Commingling. Commingle or permit the commingling
of Collateral or proceeds of Collateral with other property of or
under the control of any of American Tire or any of its Subsidiaries
that is not Collateral or proceeds thereof, including, without
limitation,
4
property of a Restricted Subsidiary until such time as such
Restricted Subsidiary is joined to this Agreement pursuant to
SECTION 9.10 hereof.
(k) By adding a new Section 12.1(p) to the Loan Agreement that reads
as follows:
(p) any default or event of default shall occur under the
revolving line of credit between Target Tire and Target Tire Lender.
(l) By deleting Schedules 6.1 (a), 6.1(b), 6.1(c), 6.1(f), 6.1(p),
6.1(t), 6.1(u), 6.1(v) and 6.1(dd) to the Loan Agreement and by
substituting the new Schedules 6.1 (a), 6.1(b), 6.1(c), 6.1(f), 6.1(p),
6.1(t), 6.1(u), 6.1(v) and 6.1(dd) attached hereto in lieu thereof.
3. AMENDMENTS TO LOAN AGREEMENT TO ADD $20,000,000 BRIDGE LOAN FACILITY
FROM FLEET CAPITAL CORPORATION. The Loan Agreement is hereby amended as follows:
(a) By adding the following new definitions to Section 1.1 of the
Loan Agreement, in proper alphabetical sequence, that read as follows:
"Bridge Lender" means FCC.
"Bridge Loan" has the meaning specified in SECTION 2B.1.
"Bridge Loan Termination Date" means the earlier of: (i)
February 28, 2005 (ii) the date on which Target Tire is joined to
this Agreement pursuant to SECTION 9.10 hereof, or (iii) such date
as all Secured Obligations have been irrevocably paid in full.
"Bridge Note" has the meaning specified in SECTION 2B.2.
"Second Amendment Closing Date" means September 1, 2004.
(b) By deleting the definition of "Lender" that is contained in
Section 1.1 of the Loan Agreement and by substituting the following new
definition in lieu thereof:
"Lender" means at any time any financial institution party to
this Agreement as a "Lender" at such time, including any such Person
becoming a party hereto pursuant to the provisions of ARTICLE 13,
and including Bridge Lender.
(c) By deleting the definition of "Loan" that is contained in
Section 1.1 of the Loan Agreement and by substituting the following new
definition in lieu thereof:
"Loan" means any Revolving Credit Loan, Swingline Loan or the
Bridge Loan, as well as all such loans collectively, as the context
requires.
5
(d) By deleting the definitions of "Note" and "Notes" that are
contained in Section 1.1 of the Loan Agreement and by substituting the
following new definitions in lieu thereof:
"Note" means any of the Revolving Credit Notes, the Swingline
Note, and the Bridge Note and "Notes" means more than one such Note.
(e) By adding a new sentence to the end of the definition of
Required Lenders that is contained in Section 1.1 of the Loan Agreement
that reads as follows:
So long as the Bridge Loan is outstanding, for purposes of
calculating the Commitment Percentages for the Lenders for the
voting rights provisions set forth in SECTION 15.9, on any date of
determination, (i) the Commitment Percentages for the Lenders shall
be adjusted based upon the outstanding amount of the Bridge Loan on
such date and the aggregate amount of the Commitments of Lenders
(including the Bridge Loan outstanding) on such date, and (ii) FCC,
in its capacities as a Lender and Bridge Lender, shall constitute
only one Lender for purposes of this definition.
(f) By deleting clause (a) of the definition of "Secured
Obligations" that is contained in Section 1.1 of the Loan Agreement and by
substituting the following new clause (a) in lieu thereof:
(a) the principal of and interest on the Loans, including the
Bridge Loan,
(g) By deleting the definition of "Secured Parties" that is
contained in Section 1.1 of the Loan Agreement and by substituting the
following new definition in lieu thereof:
"Secured Parties" means each Agent, each Lender (including the
Bridge Lender), the Bank and any Affiliate of the Bank or a Lender
that is the obligee under any Banking Relationship Debt.
(h) By adding a new Article 2B to the Loan Agreement, immediately
following Article 2A of the Loan Agreement, that reads as follows:
ARTICLE 2B
BRIDGE LOAN FACILITY
Section 2B.1 Bridge Loan. Subject to and upon the terms and
conditions herein set forth, Bridge Lender agrees to make a secured
bridge loan ("Bridge Loan) to Borrowers in the principal amount of
$20,000,000. The Bridge Loan shall be funded by Bridge Lender on the
Second Amendment Closing Date. The Bridge Loan shall be secured by
the Collateral. Borrowers shall not be entitled to reborrow any
amounts
6
repaid with respect to the Bridge Loan. The commitment of Bridge
Lender to make the Bridge Loan shall expire on the Second Amendment
Closing Date. The Bridge Loan shall initially be a Base Rate Loan
but thereafter may be converted, in whole or in part, to a LIBOR
Loan as provided herein.
Section 2B.2 Bridge Note. Borrowers shall execute and deliver
to Bridge Lender, on the Second Amendment Closing Date, a promissory
note substantially in the form of EXHIBIT A-3 attached hereto and
made a part hereof ("Bridge Note") to evidence the Bridge Loan. The
Bridge Note shall be dated the Second Amendment Closing Date and
shall provide for payment of the Bridge Loan as specified in
SECTIONS 2B.3 AND 4.1 (a) hereof.
Section 2B.3 Repayment of Bridge Loan. The outstanding
principal amount of the Bridge Loan is due and payable, and shall be
repaid by the Borrowers, as their joint and several obligation, in
full, not later than the Bridge Loan Termination Date, together with
accrued and unpaid interest thereon to such date. Borrowers may
prepay the Bridge Loan in whole or in part at any time.
(i) By adding the following new subsection (iv) to Section 4.1 (a)
of the Loan Agreement, immediately following subsection (iii) of Section
4.1 (a), that reads as follows:
(iv) Subject to the provisions of SECTION 4.1(c), Borrowers
will pay interest in respect of all unpaid principal amounts
outstanding with respect to the Bridge Loan from the date such
principal amount is advanced until paid (whether at maturity, by
reason of acceleration or otherwise) at a rate per annum equal to
the applicable rate indicated below:
(a) for any part of the Bridge Loan made or outstanding
in whole or in part as a Base Rate Loan, 6.0% plus the Base
Rate in effect from time to time; payable monthly in arrears
as it accrues on each Interest Payment Date; the Base Rate on
the date hereof is four and one-half percent (4.50%) and
therefore, the interest rate applicable hereunder to any part
of the Bridge Loan made or outstanding in whole or in part as
a Base Rate Loan on the date hereof, expressed in simple
interest terms, is ten and one-half percent (10.50%); or
(b) for any part of the Bridge Loan made or outstanding
in whole or in part as a Eurodollar Rate Loan, 7.50% plus the
Eurodollar Rate for the applicable Interest Period selected by
Borrowers in conformity with this Agreement; payable on the
last day of such Interest Period and, if such
7
Interest Period is longer than three months, at three-month
intervals during such Interest Period.
(j) By adding the following new Section 4.2(g) to the Loan
Agreement, immediately following Section 4.2(f), that reads as follows:
(g) Bridge Loan Closing Fee. Borrowers shall pay to Bridge
Lender a closing fee, in immediately available funds, pursuant to a
separate fee letter among Borrowers and Bridge Lender, which fee
shall be paid concurrently with the funding of the Bridge Loan
hereunder.
(k) By deleting Section 4.13(d) of the Loan Agreement and by
substituting the following new Section 4.13(d) in lieu thereof:
(d) In no event shall there be (i) more than six Eurodollar
Rate Loans outstanding as Revolving Credit Loans hereunder at any
time, or (ii) more than two Eurodollar Rate Loans outstanding under
the Bridge Loan hereunder at any time. For the purpose of this
SUBSECTION (d), each Loan having a distinct Interest Period shall be
deemed to be a separate Loan hereunder.
(l) By deleting the first sentence of Section 4.16 of the Loan
Agreement and by substituting the following new first sentence of
Section 4.16 in lieu thereof:
All monies to be applied to the Secured Obligations, whether
such monies represent voluntary payments by the Borrowers or are
received pursuant to demand for payment or realized from any
disposition of Collateral, shall be allocated among the
Administrative Agent and such of the Lenders and other holders of
the Secured Obligations as are entitled thereto (and, with respect
to monies allocated to the Lenders, on a Ratable basis unless
otherwise provided in this SECTION 4.16): (i) first, to the
Swingline Lender (or to any Lender to the extent such Lender has
previously repaid such Loan) to pay principal and accrued interest
on any portion of any Swingline Loan; (ii) second, to the
Administrative Agent to pay the amount of expenses that have not
been reimbursed to the Administrative Agent by the Borrowers or the
Lenders, together with interest accrued thereon; (iii) third, to the
Administrative Agent to pay any indemnified amount that has not been
paid to the Administrative Agent by the Borrowers or the Lenders,
together with interest accrued thereon; (iv) fourth, to the
Administrative Agent to pay any fees due and payable to the
Administrative Agent under this Agreement; (v) fifth, to the Lenders
for any indemnified amount that they have paid to the Administrative
Agent and for any expenses that they have reimbursed to the
Administrative Agent; (vi) sixth, to the Lenders to pay any fees due
and payable to the Lenders under this Agreement; (vii) seventh, in
payment of the unpaid principal and accrued interest in respect of
the Loans (other than the Bridge Loan) and any other Secured
8
Obligations (including Secured Obligations arising under Hedging
Agreements but excluding any other Banking Relationship Debt, and
excluding any Secured Obligations arising under the Bridge Loan)
then outstanding and held by any Lender to be shared among the
Lenders on a Ratable basis, or on such other basis as may be agreed
upon in writing by all of the Lenders (which agreement or agreements
may be entered into without notice to or the consent or approval of
the Borrowers); (viii) eighth, in payment of the unpaid principal
and accrued interest in respect of the Bridge Loan plus any other
Secured Obligations arising under the Bridge Loan; provided,
however, that the Bridge Loan may be paid in full to the Bridge
Lender on the Bridge Loan Termination Date (or upon a voluntary
prepayment by Borrowers) so long as no Default or Event of Default
exists or would result therefrom; and (ix) ninth, to any Banking
Relationship Debt (other than Secured Obligations arising under
Hedging Agreements or the Bridge Loan) on a pro rata basis.
(m) By adding a new subsection (c) to Section 11.4 of the Loan
Agreement that reads as follows:
(c) Notwithstanding any provision of this Agreement, in no
event shall any Borrower make or acquire any investment in any
Restricted Subsidiary so long as such Subsidiary is a Restricted
Subsidiary.
(n) By adding EXHIBIT A-3 (Bridge Note) attached hereto to the Loan
Agreement as a new EXHIBIT A-3 to the Loan Agreement.
4. DEFERRAL OF JOINDER OF TARGET TIRE, INC. Pursuant to a certain Consent
Letter dated September 1, 2004 among Agents, Lenders and Borrowers, the Lenders
have consented to the Acquisition by American Tire of all of the outstanding
stock of Target Tire, Inc., a North Carolina corporation ("Target Tire").
Pursuant to Section 9.10 of the Loan Agreement, Administrative Agent is
permitted to request the prompt joinder of any non-Borrower domestic Subsidiary
as a Borrower under the Loan Agreement. On the date hereof, Administrative Agent
and Lenders have agreed with Borrowers not to request that Target Tire be joined
as a Borrower under the Loan Agreement; provided, however, that Administrative
Agent, Lenders and Borrowers have agreed that Borrowers shall comply with the
following conditions and that upon satisfaction of the following conditions,
American Tire shall cause Target Tire immediately to be joined to the Loan
Agreement in accordance with the provisions of Section 9.10 of the Loan
Agreement:
(a) On or before November 1, 2004, all Liens of the Target Tire
Vendors on the property of Target Tire shall either be (i) terminated,
(ii) subordinated to the Liens of Administrative Agent in the Collateral
by execution of a Vendor Lien Subordination Agreement, or (iii)
Unsubordinated Vendor Liens pursuant to SECTION 11.9(f) of the Loan
Agreement;
9
(b) On or before November 1, 2004, Administrative Agent or a
representative of Administrative Agent shall have performed and completed,
at the sole cost and expense of Borrowers, a satisfactory field
examination of the assets of Target Tire;
(c) On or before November 1, 2004, Borrowers shall have delivered to
Administrative Agent and Lenders the complete and final summary due
diligence report prepared in connection with the Acquisition of Target
Tire;
(d) On or before November 1, 2004, Borrowers shall have delivered to
Administrative Agent and Lenders in writing an operating implementation
plan regarding the Acquisition of Target Tire and the subsequent
consolidation of Target Tire's warehouse locations into American Tire's
warehouse locations;
(e) On or before February 28, 2005, the Target Tire Lender shall
have been paid in full, and the loan documents governing the loans made
available to Target Tire from the Target Tire Lender shall have been
terminated and all Liens granted in favor of Target Tire Lender by Target
Tire shall have been released and terminated of record; and
(f) On or before February 28, 2005, Borrowers shall have delivered a
certificate to Administrative Agent and Lenders, in form and substance
satisfactory in all respects to Administrative Agent and Lenders,
certifying that the conditions set forth in Section 11.4(iv) through
(viii) have been satisfied.
5. ACKNOWLEDGMENT REGARDING ACQUISITIONS. Each Borrower acknowledges and
stipulates that the Acquisitions of Texas Market Tire Holdings I, Inc. and
Target Tire, Inc. during the first Loan Year exceed the permitted aggregate
allowance of $35,000,000 for the Purchase Prices of Permitted Acquisitions under
Section 11.4(ii) of the Loan Agreement, and as a result thereof, Borrowers have
no further ability to conduct Permitted Acquisitions during the first Loan Year.
Each Borrower further acknowledges and stipulates that the aggregate amount of
the Purchase Prices for the Acquisitions of Texas Market Tire Holdings I, Inc.
and Target Tire, Inc. total $65,913,671.36 and such amount shall apply to the
total aggregate amount of Purchase Prices of $75,000,000 permitted under Section
11.4(ii) of the Loan Agreement for Permitted Acquisitions.
6. RATIFICATION AND REAFFIRMATION. Each Borrower hereby ratifies and
reaffirms the Secured Obligations, each of the Loan Documents and all of such
Borrower's covenants, duties, indebtedness and liabilities under the Loan
Documents.
7. ACKNOWLEDGMENTS AND STIPULATIONS. Each Borrower acknowledges and
stipulates that the Loan Agreement and the other Loan Documents executed by
Borrowers are legal, valid and binding obligations of Borrowers that are
enforceable against Borrowers in accordance with the terms thereof; all of the
Secured Obligations are owing and payable without defense, offset or
counterclaim (and to the extent there exists any such defense, offset or
counterclaim on the date hereof, the same is hereby waived by each Borrower);
the security interests and liens granted by each Borrower in favor of
Administrative Agent, for the benefit of itself as Administrative Agent and the
other Secured Parties, are duly perfected, first priority
10
security interests and liens; and the unpaid principal amount of the Loans on
and as of August 30, 2004, totaled $139,209,774.16.
8. REPRESENTATIONS AND WARRANTIES. Each Borrower represents and warrants
to Agents and Lenders, to induce Agents and Lenders to enter into this
Amendment, that no Default or Event of Default exists on the date hereof, and
the execution, delivery and performance of this Amendment have been duly
authorized by all requisite corporate action on the part of each Borrower and
this Amendment has been duly executed and delivered by each Borrower.
9. REFERENCE TO LOAN AGREEMENT. Upon the effectiveness of this Amendment,
each reference in the Loan Agreement to "this Agreement," "hereunder," or words
of like import shall mean and be a reference to the Loan Agreement, as amended
by this Amendment.
10. BREACH OF AMENDMENT. This Amendment shall be part of the Loan
Agreement and a breach of any representation, warranty or covenant herein shall
constitute an Event of Default.
11. CONDITIONS PRECEDENT. The effectiveness of the amendments to the Loan
Agreement contained in Sections 2 and 3 hereof are subject to the satisfaction
of each of the following conditions precedent, in form and substance
satisfactory to Administrative Agent and Lenders, unless satisfaction thereof is
specifically waived in writing by Administrative Agent:
(a) No Default or Event of Default shall exist;
(b) Administrative Agent shall have received a duly executed
original counterpart of this Amendment, together with (i) a certificate of
resolutions from each Borrower authorizing this Amendment and the other
documents referenced herein, in form and substance satisfactory in all
respects to Administrative Agent and Lenders, and (ii) such additional
documents, instruments and certificates as Administrative Agent and
Lenders shall require in connection herewith;
(c) Administrative Agent shall have received the duly executed
Consent Letter dated September 1, 2004 from Borrowers (the "Consent
Letter");
(d) Bridge Lender shall have received a Bridge Note in the principal
amount of $20,000,0000 in the form OF EXHIBIT A-3 attached hereto;
(e) Administrative Agent shall have received a duly executed
original counterpart of a Stock Pledge Agreement by American Tire and
Administrative Agent, and an Irrevocable Stock Power and Assignment by
American Tire, each in form and substance satisfactory in all respects to
Administrative Agent and Lenders;
(f) Administrative Agent shall have received from American Tire the
original stock certificate representing 100% of the outstanding and issued
equity interests of Target Tire, as pledged to Administrative Agent, for
the benefit of itself and Lenders, pursuant to the Stock Pledge Agreement
referenced in subsection (e) above;
11
(g) Agent shall have received a duly executed original counterpart
of a (i) Collateral Assignment of Rights and Sums Due Under Stock Purchase
Agreement by American Tire and Administrative Agent, and (ii)
Acknowledgment of Collateral Assignment of Rights and Sums Due Under Stock
Purchase Agreement by Howard M. Stein and Leonard B. Stein; and
(h) Borrowers shall have paid all fees and expenses set forth in
SECTION 12 hereof and in the Consent Letter.
12. EXPENSES OF AGENTS AND LENDERS. Borrowers jointly and severally agree
to pay, ON DEMAND, all reasonable costs and expenses incurred by Agents and
Lenders in connection with the preparation, negotiation and execution of this
Amendment and any other Loan Documents executed pursuant hereto and any and all
amendments, modifications, and supplements thereto, including, without
limitation, the costs and fees of Agents' and Lenders' legal counsel and any
taxes or expenses associated with or incurred in connection with any instrument
or agreement referred to herein or contemplated hereby.
13. EFFECTIVENESS; GOVERNING LAW. This Amendment shall be effective upon
acceptance by Agents and Lenders (notice of which acceptance is hereby waived),
whereupon the same shall be governed by and construed in accordance with the
internal laws of the State of New York.
14. SUCCESSORS AND ASSIGNS. This Amendment shall be binding upon and inure
to the benefit of the parties hereto and their respective successors and
assigns.
15. No NOVATION, ETC.. Except as otherwise expressly provided in this
Amendment, nothing herein shall be deemed to amend or modify any provision of
the Loan Agreement or any of the other Loan Documents, each of which shall
remain in full force and effect. This Amendment is not intended to be, nor shall
it be construed to create, a novation or accord and satisfaction, and the Loan
Agreement as herein modified shall continue in full force and effect.
16. COUNTERPARTS; TELECOPIED SIGNATURES. This Amendment may be executed in
any number of counterparts and by different parties to this Amendment on
separate counterparts, each of which, when so executed, shall be deemed an
original, but all such counterparts shall constitute one and the same agreement.
Any signature delivered by a party by facsimile transmission shall be deemed to
be an original signature hereto.
17. FURTHER ASSURANCES. Each Borrower agrees to take such further actions
as Agents and Lenders shall reasonably request from time to time in connection
herewith to evidence or give effect to the amendments set forth herein or any of
the transactions contemplated hereby.
18. SECTION TITLES. Section titles and references used in this Amendment
shall be without substantive meaning or content of any kind whatsoever and are
not a part of the agreements among the parties hereto.
19. RELEASE OF CLAIMS. TO INDUCE AGENTS AND LENDERS TO ENTER INTO THIS
AMENDMENT, EACH BORROWER HEREBY RELEASES, ACQUITS AND FOREVER DISCHARGES EACH
AGENT
12
AND EACH LENDER, AND ALL OFFICERS, DIRECTORS, AGENTS, EMPLOYEES, SUCCESSORS AND
ASSIGNS OF EACH AGENT AND EACH LENDER, FROM ANY AND ALL LIABILITIES, CLAIMS,
DEMANDS, ACTIONS OR CAUSES OF ACTION OF ANY KIND OR NATURE (IF THERE BE ANY),
WHETHER ABSOLUTE OR CONTINGENT, DISPUTED OR UNDISPUTED, AT LAW OR IN EQUITY, OR
KNOWN OR UNKNOWN, THAT SUCH BORROWER NOW HAS OR EVER HAD AGAINST ANY AGENT OR
ANY LENDER ARISING UNDER OR IN CONNECTION WITH ANY OF THE LOAN DOCUMENTS OR
OTHERWISE. EACH BORROWER REPRESENTS AND WARRANTS TO AGENTS AND LENDERS THAT SUCH
BORROWER HAS NOT TRANSFERRED OR ASSIGNED TO ANY PERSON ANY CLAIM THAT SUCH
BORROWER EVER HAD OR CLAIMED TO HAVE AGAINST ANY AGENT OR ANY LENDER.
20. WAIVER OF JURY TRIAL. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
LAW, THE PARTIES HERETO EACH HEREBY WAIVES THE RIGHT TO TRIAL BY JURY IN ANY
ACTION, SUIT, COUNTERCLAIM OR PROCEEDING ARISING OUT OF OR RELATED TO THIS
AMENDMENT.
[Remainder of Page Left Intentionally Blank]
13
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed under seal and delivered by their respective duly authorized
officers on the date first written above.
BORROWERS:
Attest: AMERICAN TIRE DISTRIBUTORS, INC.
/s/ J. Michael Gaither By: /s/ Scott A. Deininger
-------------------------------- -----------------------------------------
J. MICHAEL GAITHER, Secretary SCOTT A. DEININGER, Senior Vice President
Finance and Administration and Treasurer
Attest: THE SPEED MERCHANT, INC.
/s/ J. Michael Gaither By: /s/ Scott A. Deininger
-------------------------------- -----------------------------------------
J. MICHAEL GAITHER, Secretary SCOTT A. DEININGER, Vice President and
Treasurer
Attest: T.O. HAAS HOLDING CO., INC.
/s/ J. Michael Gaither By: /s/ Scott A. Deininger
-------------------------------- -----------------------------------------
J. MICHAEL GAITHER, Secretary SCOTT A. DEININGER, Vice President
and Treasurer
Attest: T.O. HAAS TIRE COMPANY, INC.
/s/ J. Michael Gaither By: /s/ Scott A. Deininger
-------------------------------- -----------------------------------------
J. MICHAEL GAITHER, Secretary SCOTT A. DEININGER, Vice President
and Treasurer
Attest: TEXAS MARKET TIRE HOLDINGS I, INC.
/s/ J. Michael Gaither By: /s/ Scott A. Deininger
-------------------------------- -----------------------------------------
J. MICHAEL GAITHER, Secretary SCOTT A. DEININGER, Vice President
and Treasurer
[Signatures continued on following page]
Signature Page - Second Amendment
Attest: TEXAS MARKET TIRE, INC.
/s/ J. Michael Gaither By: /s/ Scott A. Deininger
-------------------------------- -----------------------------------------
J. MICHAEL GAITHER, Secretary SCOTT A. DEININGER, Vice President and
Treasurer
AGENTS AND LENDERS:
FLEET CAPITAL CORPORATION, as
Administrative Agent and as a Lender
By: /s/ Stephen Y. McGehee
-----------------------------------------
Name: STEPHEN Y. McGEHEE
Title: SENIOR VICE PRESIDENT
WACHOVIA BANK, NATIONAL
ASSOCIATION, as Syndication Agent and
as a Lender
By: /s/ Robert L. Dean
-----------------------------------------
Name: Robert L. Dean
Title: Managing Director
THE CIT GROUP/BUSINESS CREDIT,
INC., as Documentation Agent and as a Lender
By: /s/ John Thomas
-----------------------------------------
Name: JOHN THOMAS
Title: Account Executive
[Signatures continued on following page]
Signature Page - Second Amendment
2
STANDARD FEDERAL BANK NATIONAL
ASSOCIATION, formerly known as
Michigan National Bank, as
successor in interest to
Mellon Bank, N.A., as a Lender
BY: LASALLE BUSINESS CREDIT, LLC,
its agent
By: /s/ Roger D. Attix
--------------------------------
Name: ROGER D. ATTIX
Title: VP
TRANSAMERICA BUSINESS CAPITAL
CORPORATION, as a Lender
By: /s/ William R. Doolittle
--------------------------------
Name: William R. Doolittle
Title: DULY AUTHORISED SIGNATORY
Signature Page - Second Amendment
3
EXHIBIT A-3
FORM OF BRIDGE NOTE
$20,000,000.00
September 1, 2004
FOR VALUE RECEIVED, the undersigned, AMERICAN TIRE DISTRIBUTORS, INC., a
Delaware corporation, THE SPEED MERCHANT, INC., a California corporation, T.O.
HAAS HOLDING CO., INC., a Nebraska corporation, T.O. HAAS TIRE COMPANY, INC., a
Nebraska corporation, TEXAS MARKET TIRE HOLDINGS I, INC., a Texas corporation
("Holdings"), and TEXAS MARKET TIRE, INC., a Texas corporation doing business as
Big State Tire Supply (collectively, the "Borrowers"), hereby jointly and
severally unconditionally promise to pay to the order of FLEET CAPITAL
CORPORATION (the "Bridge Lender") at the offices of Fleet Capital Corporation, a
Rhode Island corporation, as administrative and collateral agent for the Lenders
(together with its successor agents, the "Administrative Agent") located at 300
Galleria Parkway, Suite 800, Atlanta, Georgia 30339, or at such other place
within the United States as shall be designated from time to time by the
Administrative Agent, on the Bridge Loan Termination Date, the principal amount
of TWENTY MILLION AND NO/100 DOLLARS ($20,000,000), in lawful money of the
United States of America in federal or other immediately available funds.
The Borrowers also jointly and severally unconditionally promise to pay
interest on the unpaid principal amount of this Note outstanding from time to
time for each day from the date hereof until such principal amount is paid in
full (whether upon maturity, by reason of acceleration or otherwise) at the
rates per annum and on the dates specified in the Loan Agreement applicable from
time to time in accordance with the provisions thereof. Nothing contained in
this Note or in the Loan Agreement shall be deemed to establish or requires the
payment of a rate of interest in excess of the maximum rate permitted by any
Applicable Law. In the event that any rate of interest required to be paid
hereunder exceeds the maximum rate permitted by Applicable Law, the provisions
of the Loan Agreement relating to the payment of interest under such
circumstances shall control.
This Note is the Bridge Note referred to in the Third Amended and Restated
Loan and Security Agreement dated as of March 19, 2004 (as amended, modified,
supplemented or restated from time to time, the "Loan Agreement"; unless
otherwise defined herein, terms defined therein being used in this Note as
therein defined), by and among the Borrowers, the Bridge Lender, the other
financial institutions party thereto from time to time as "Lenders," and the
Administrative Agent, is subject to, and entitled to, all provisions and
benefits of the Loan Documents, is secured by the Collateral and other property
as provided in the Loan Documents, is subject to optional and mandatory
prepayment in whole or in part and is subject to acceleration prior to maturity
upon the occurrence of one or more Events of Default, all as provided in the
Loan Documents.
Presentment for payment, demand, protest and notice of demand, notice of
dishonor, notice of non-payment and all other notices are hereby waived by the
Borrowers, except to the extent expressly provided in the Loan Agreement. No
failure to exercise, and no delay in
exercising, any rights hereunder on the part of the holder hereof shall operate
as a waiver of such rights.
The Borrowers hereby jointly and severally agree to pay on demand all
costs and expenses incurred in collecting the Secured Obligations hereunder or
in enforcing or attempting to enforce any of the Bridge Lender's rights
hereunder, including, but not limited to, reasonable attorneys' fees and
expenses actually incurred if collected by or through an attorney, whether or
not suit is filed.
THE PROVISIONS OF SECTION 15.17 OF THE LOAN AGREEMENT ARE HEREBY EXPRESSLY
INCORPORATED HEREIN.
THIS BRIDGE NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO THE CONFLICT OF LAWS
PRINCIPLES THEREOF, OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL
OBLIGATIONS LAW.
2
IN WITNESS WHEREOF, the undersigned have executed this Bridge Note as of
the day and year first above written.
BORROWERS:
Attest: AMERICAN TIRE DISTRIBUTORS, INC.
----------------------------- BY:
J. MICHAEL GAITHER, Secretary -------------------------------------------
SCOTT A. DEININGER, Senior Vice President
Finance and Administration and Treasurer
Attest: THE SPEED MERCHANT, INC.
----------------------------- BY:
J. MICHAEL GAITHER, Secretary -------------------------------------------
SCOTT A. DEININGER, Vice President and
Treasurer
Attest: T.O. HAAS HOLDING CO., INC.
----------------------------- BY:
J. MICHAEL GAITHER, Secretary -------------------------------------------
SCOTT A. DEININGER, Vice President and
Treasurer
Attest: T.O. HAAS TIRE COMPANY, INC.
----------------------------- BY:
J. MICHAEL GAITHER, Secretary -------------------------------------------
SCOTT A. DEININGER, Vice President and
Treasurer
(Signatures continued on following page)
3
Attest: TEXAS MARKET TIRE HOLDINGS I, INC.
----------------------------- By:
J. MICHAEL GAITHER, Secretary -----------------------------------------
SCOTT A. DEININGER, Vice President and
Treasurer
Attest: TEXAS MARKET TIRE, INC.
----------------------------- By:
J. MICHAEL GAITHER, Secretary -----------------------------------------
SCOTT A. DEININGER, Vice President and
Treasurer
4
SCHEDULES
(See Attached)
SCHEDULE 6.1(a)
JURISDICTIONS IN WHICH BORROWERS ARE
QUALIFIED AS FOREIGN CORPORATIONS
AMERICAN TIRE DISTRIBUTORS, INC., A DELAWARE CORPORATION
Alabama* Maine Oklahoma
Arizona* Maryland* Oregon
Arkansas* Massachusetts Pennsylvania*
California* Michigan Rhode Island
Colorado Minnesota South Carolina*
Connecticut Mississippi* South Dakota*
District of Columbia Missouri* Tennessee*
Florida* Montana Texas (Heafner Tire Group)
Georgia* Nebraska* Utah
Idaho Nevada Vermont
Illinois New Jersey Virginia*
Indiana New Mexico Washington
Iowa* New York* West Virginia*
Kansas* North Carolina* Wisconsin
Kentucky North Dakota Wyoming
Louisiana Ohio
THE SPEED MERCHANT, INC., A CALIFORNIA CORPORATION*
Arizona**
T.O. HAAS HOLDING CO., INC., A NEBRASKA CORPORATION
T.O. HAAS TIRE COMPANY, A NEBRASKA CORPORATION*
Missouri**
TEXAS MARKET TIRE HOLDINGS I, INC., A TEXAS CORPORATION
TEXAS MARKET TIRE, INC., A TEXAS CORPORATION
New Mexico* Oklahoma*
TARGET TIRE, INC., A NORTH CAROLINA CORPORATION
South Carolina Georgia Virginia
Tennessee
* denotes jurisdiction in which borrower conducts business
** to be withdrawn as soon as practical after Effective Date
SCHEDULE 6.1(b)
CAPITALIZATION
A. AMERICAN TIRE DISTRIBUTORS, INC.
Authorized 50,000,000 shares of Class A Common Stock, par value $0.01 per
share and 10,982,426 shares of Preferred Stock, par value $0.01 per share,
issued and outstanding or reserved for issuance as follows (as of July 3, 2004).
Name Type Shares Issued Shares Reserved
---- ---- ------------- ---------------
Charlesbank Equity Fund IV, Limited Class A Common 4,846,179 0
Partnership
Charlesbank Coinvestment Partners, LLC Class A Common 4,444 0
Squam Lake Investors III, L.P. Class A Common 92,222 0
Sunapee Securities, Inc. Class A Common 18,889 0
The 1818 Mezzanine Fund, L.P. Warrants to acquire 0 1,034,000
Class A Common
W.P. Carey Warrants to acquire 0 153,597
Class A Common
Management (as a group) Class A Common 150,183 0
Management (as a group) Options to acquire 0 3,633,639
Class A Common
Outside Directors Options to acquire 100,000
Class A Common
TOTALS: 5,111,917 4,921,236
---------- ---------
1818 Mezzanine Fund, L.P. Series C Preferred 500,001
Stock
Charlesbank Equity Fund, IV, L.P. Series C Preferred 3,500,001
Stock
The 1818 Mezzanine Fund, L.P. Series D Preferred 1,532,377
Stock
Charlesbank Equity Fund IV, L.P. Series D Preferred 8,097,520
Stock
Charlesbank Equity Parallel Fund IV Series D Preferred 2,695
Stock
Charlesbank Coinvestment Partners, LLC Series D Preferred 5,000
Stock
TOTALS: 13,637,594
----------
KELLY-SPRINGFIELD TIRE Series A Preferred 5,500
COMPANY Stock
KELLY-SPRINGFIELD TIRE Series B Preferred 4,500
COMPANY Stock
TOTALS: 10,000
----------
*denotes jurisdiction in which borrower conducts business
** to be withdrawn as soon as practical after Effective Date
B. THE SPEED MERCHANT INC.
Authorized no shares of preferred stock and 1,000,000 shares of common stock,
par value $.01, of which 14,118 are issued and outstanding and held by American
Tire Distributors, Inc.
C. T.O. HAAS HOLDING CO., INC.
Authorized no shares of preferred stock and 5,000,000 shares of common stock,
$0.01 par value, of which 126,789 are issued and outstanding and held by
American Tire Distributors, Inc.
D. T.O. HAAS TIRE COMPANY, INC.
Authorized 500 shares of common stock, $100.00 par value, of which 486 are
issued and outstanding and held by T.O. Haas Holding Co., Inc.
E. TEXAS MARKET TIRE HOLDINGS, INC.
Authorized 1,000,000 shares of common stock, $1.00 par value (500,000
Class A voting and 500,000 Class B nonvoting) of which 100 and 900,
respectively, are issued and outstanding and held by American Tire Distributors,
Inc.
F. TEXAS MARKET TIRE, INC.
Authorized 1,000,000 shares of common stock, $1.00 par value of which 1000
are issued and outstanding and held by Texas Market Tire, Inc.
G. TARGET TIRE, INC.
Authorized 100,000 shares of common stock, $1.00 par value of which 32,567
shares are issued and outstanding and held by American Tire Distributors, Inc.
*denotes jurisdiction in which borrower conducts business
** to be withdrawn as soon as practical after Effective Date
SCHEDULE 6.1(c)
SUBSIDIARIES; OWNERSHIP OF STOCK
JURISDICTION OF
NAME INCORPORATION IMMEDIATE PARENT
---- ------------- ----------------
The Speed Merchant, Inc. California American Tire Distributors, Inc.
T.O. Haas Holding Co., Inc. Nebraska American Tire Distributors, Inc.
T.O. Haas Tire Company, Inc. Nebraska T.O. Haas Holding Co., Inc.
Texas Market Tire Holdings I, Inc. Texas American Tire Distributors, Inc.
Texas Market Tire, Inc. Texas Texas Market Tire Holdings I, Inc.
Target Tire, Inc. North Carolina American Tire Distributors, Inc.
Each subsidiary is 100% owned by its immediate parent.
* denotes jurisdiction in -which borrower conducts business
** to be withdrawn as soon as practical after Effective Date
SCHEDULE 6.1(f)
BUSINESS OF BORROWERS
American Tire Distributors, Inc., Wholesale distribution of tires, wheels,
The Speed Merchant, Inc., T.O. mechanical service equipment and
Haas Holding Company, Inc., T.O. automotive parts and accessories.
Haas Tire Company, Inc., Texas Development, sale and marketing of
Market Tire Holdings I, Inc., computer technology related to the sale
Texas Market Tire, Inc., Target of tires, wheels, and other related
Tire, Inc. businesses
Other: Sale of tires, wheels, automotive parts
and accessories through the Internet,
and other e-commerce ventures related to
the business described above
Heafner Worldwide Sale of tires, wheels, mechanical
service equipment and automotive parts
and accessories outside of the United
States either on a direct export basis
or through a domestic exporter.
* denotes jurisdiction in which borrower conducts business
** to be withdrawn as soon as practical after Effective Date
SCHEDULE 6.1(p)
ERISA
American Tire Distributors, Inc. Deferred Compensation Program
American Tire Distributors, Inc Employee Welfare Benefit Plan
American Tire Distributors, Inc. Vacation and Sick Leave Plan for Western
Division Employees
American Tire Distributors, Inc. Retirement Plan
Texas Market Tire, Inc. 401(k) Plan
Target Tire & Affiliates Profit-Sharing & 401(k) Plan
Target Tire Inc. Employee Benefit Plan
Target Tire & Automotive Corp. Flexible Benefits Plan
* denotes jurisdiction in which borrower conducts business
** to be withdrawn as soon as practical after Effective Date
SCHEDULE 6.1(t)
LOCATION OF OFFICES AND RECEIVABLES
American Tire Distributors, Inc.
12200 Herbert Wayne Court, Suite 150
P.O. Box 1345
Huntersville, NC 28070-3145
The Speed Merchant, Inc.
645 Dado Street
San Jose, CA 95131
T.O. Haas Tire Company
3800 NW 12th Street, Suite A
P.O. Box 85746
Lincoln, NE 68501
Texas Market Tire, Inc.
8308 Upland Avenue
Lubbock, TX 79424
Target Tire, Inc.
2221 Lejeune Boulevard
Jacksonville, NC 28546
* denotes jurisdiction in which borrower conducts business
** to be withdrawn as soon as practical after Effective Date
SCHEDULE 6.1(u)
LOCATION OF INVENTORY
LOCATION ADDRESS SQ FT
-------- ------- -----
Albuquerque, NM 8225 Washington Street, NE, Suite 102, Albuquerque, New 24,000
Mexico 87113
Amarillo, TX 101 South Grand, Amarillo, Texas 79101-1604 30,000
Amarillo, TX 617 E. 2nd Street, Amarillo, Texas 79101-1604 22,000
Asheville, NC* 40 Dogwood Road, Asheville, NC 28806 26,250
Atlanta, GA 2232 Mountain Industrial Blvd., Tucker, GA 30084 105,000
Atlanta, GA** 3602 Browns Mill Road, Atlanta, GA 30354 50,000
Auburn, NY 40 York Street, Auburn, NY 13021 71,120
Augusta, GA 2504 Deans Bridge Rd., Augusta, GA 30906 15,600
Baltimore, MD 4625 Hollins Ferry Road, Halethorpe, MD 21227 150,403
Buffalo, NY 491 Ontario Street, Buffalo, NY 14207 48,000
Burlington, NC 3020 Tucker Street Extension, Burlington, NC 27215 80,000
Byron, GA 102 Dunbar Rd., Byron, GA 31008 50,000
Carrollton, TX 1701 Vantage, Suite 102, Carrollton, Texas 75006 50,620
Carson, CA 22411 S. Bonita Street, Carson, CA 90745 94,984
Charleston, SC 7360 Spartan Blvd., Charleston, SC 29418 50,500
Charleston, SC** 311 Huger Street, Charleston, SC 29403 44,000
Charlotte, NC 4301 Wilkinson Blvd., Charlotte, NC 28208 120,200
Charlotte, NC** 929 Jay Street, Charlotte, NC 28208 80,000
Chula Vista, CA 2400 Main Street, Chula Vista, CA 91911 81,330
Columbia, SC 917 Rosewood Dr., Columbia, SC 29201 88,858
Columbia, SC** 721 Vine Street, Columbia, SC 29201 64,875
Cullman, AL 420 Industrial Park Road, Cullman, AL 35055 100,000
Des Moines, IA 3915 Delaware Avenue, Suite #5, Des Moines, Iowa 76,530
Duncan, SC** 1245 Woods Chapel Road, Duncan, SC 29334 60,000
Durham, NC** 1400 East Greer Street, Durham, NC 27704 67,000
Fayetteville, NC 4208 Murchson Rd., Fayetteville, NC 28311 80,000
Florence, SC 1611 Rangeway Drive, Florence, SC 29503 32,400
Fresno, CA 3064 South Chestnut Avenue, Fresno, CA 93725 14,784
Ft. Myers, FL 17550 East Street NE, Ft. Myers, FL 33917 30,000
Harrisonburg, VA 880 Acorn Drive, Harrisonburg, VA 22802 90,000
Jackson, MS 926 I-20, Jackson, MS 39284 30,000
Jacksonville, FL 243 N. Lane Ave., Jacksonville, FL 32254 85,600
Jacksonville, NC** 2221 Lejeune Blvd., Jacksonville, NC 08546 30,620
Johnson City, TN 410 Century Ct., Piney Flats, TN 37686 50,000
Knoxville, TN 916 Callahan Drive, Knoxville, TN 37912 75,000
Knoxville, TN** 601 East Jackson Avenue, Knoxville, TN 36,600
Landover, MD 7100A Old Landover Road, Landover, MD 20785 106,500
Lincoln, ME 1415 Commerce, Lincoln, NE 68521 222,000
Lincoln, NE 3541 NW 15th Street, Lincoln, NE 68501 27,500
- * denotes facilities owned by American Tire Distributors
- ** denotes Target Tire, Inc. facilities
Lincolnton, NC 3099 Finger Mill Road, Lincolnton, NC 28092 170,000
Lincolnton, NC 5134 Startown Road, Building #1, Lincolnton, NC 28092 30,000
Little Rock, AR 1305 North Hills Blvd., Ste. 114, N. Little Rock, AR 72114 39,204
Louisville, KY 8169 National Turnpike, Louisville, KY 40214 61,875
Lubbock, TX 8308 Upland Avenue, Lubbock, Texas 79424-4718 88,000
Lynchburg, VA** 1218 Park Avenue, Lynchburg, VA 24501 34,300
Mauldin, SC 712 N. Main Street, Mauldin, SC 29662 84,700
McAllen, TX 2900 West Business Hwy 83, McAllen, Texas 78501 30,000
Memphis, TN 4370 Mendenhall Road, Memphis, TN 38141 62,447
Miami, FL 16542 NW 54th Avenue, Hialeah, FL 33014 90,050
Mobile, AL 5240 Willis Road, Theodore, AL 36582 60,000
Montgomery, AL 2914 Day St., Montgomery, AL 36108 60,000
Moorpark, CA 5100 Commerce Avenue, Moorpark, CA 93021 76,130
N. Versailles, PA 611 E. Pittsburgh/McKeesport Blvd., N. Versailes, PA 15137 30,000
Nashville, TN 521 Harding Industrial Drive, Nashville, TN 37211 100,000
Norfolk, VA 4554 Progress Rd., Norfolk, VA 23502 79,565
Oklahoma City, OK 408 S. Eagle Lane, Oklahoma City, Oklahoma 73128-4225 23,000
Orlando, FL 2216 Directors Row, Orlando, FL 32809 115,848
Pensacola, FL 7502 Sears Blvd., Pensacola, FL 32514 40,500
Phoenix, AZ 2001 South 15th Avenue, Phoenix, AZ 85007 125,643
Poca, WV 5 Stone Street, Poca, WV 25159 47,900
Raleigh, NC 1615 Wolfpack Lane, Suite 121, Raleigh, NC 27609 51,802
Rancho Cucamonga, CA 11680 Dayton Drive, Rancho Cucamonga, CA 91730 143,468
Richmond, VA 1806 Jefferson Davis Highway, Richmond, VA 23224 61,000
Richmond, VA** 1200 Dinwiddie Street, Richmond, VA 23224 44,000
Roanoke, VA 1634 Seibel Drive NE, Roanoke, VA 24013-6032 48,000
Rome, GA* 332 Dodd Blvd, SE, Rome, GA 30161 84,700
Rural Hall, NC 250 Northstar Drive, Rural Hall, NC 27045 100,000
Sacramento, CA 4631 Raley Boulevard, Sacramento, CA 95838 133,380
Salisbury, MD* 530 Marvel Road, Salisbury, MD 21801 26,300
San Angelo, TX 39 West Concho, San Angelo, Texas 76903 9,875
San Angelo, TX 27 West Concho, San Angelo, Texas 76903 5,000
San Angelo, TX 332 Pullin, San Angelo, Texas 76903 5,000
San Jose, CA 645 Dado Street, San Jose, CA 95131 103,350
San Marcos, TX 2350 Clovis Barker Road, San Marcos, TX 78666 55,000
Savannah, GA 1402 Mills B Lane Blvd., Savannah, GA 31405 60,500
Savannah, GA** 25A Artley Road, Savannah, GA 36000
Sioux Falls, SD 611 North West Avenue, Sioux Falls, SD 57118 84,000
Springfield, MO 2727 N. Oak Grove, Springfield, MO 65803 60,000
Tallahassee, FL* 2780 Hartsfield Road, Tallahassee, FL 32303 15,000
Tampa, FL 1201-2 Old Hopewell Rd., Tampa, FL 33619 69,647
Texarkana, AR 3921 West 19th Street, Texarkana, AR 71854 49,500
Tyler, TX 3709 Shiloh Road, Tyler, Texas 75707-1913 25,000
West Palm Beach, FL 3300 Electronics Way, W. Palm Beach, FL 33407 50,000
- * denotes facilities owned by American Tire Distributors
- * denotes facilities owned by American Tire Distributors
- ** denotes Target Tire, Inc. facilities
SCHEDULE 6.1(v)
CORPORATE AND FICTITIOUS NAMES
AMERICAN TIRE DISTRIBUTORS, INC. (INCLUDING PREDECESSOR ENTITIES)
Heafner Tire Group, Inc.
The J.H. Heafner Company, Inc.
Heafner-Itco
Heafner-Itco Tires & Products
Heafner Tire & Products
Heafner Worldwide
ITCO Logistics Corporation
ITCO Holding Company, Inc.
ITCO Tire Company
ITCO Tire Company of Georgia, Inc.
L&N Leasing Corporation
Doug Duggan, Inc.
Interstate Tire Company
Interstate Tire & Battery
Radial Tire Stores, Inc/
Town & County Tire Service, Inc.
AutoEdge
Winston Tire Company
Oliver & Winston, Inc.
Winston Tire
Winston Tires
California Tire Company
Cal Tire
California Tire Company LLC
California Tire Acquisition Company
Heafner Worldwide
Heafnet
Xpress Performance
THE SPEED MERCHANT, INC.
CPW
Competition Parts Warehouse
American Tire Distributors
Phoenix Racing, Inc.
The Speed Merchant of San Jose
Arthur Enterprises, Inc.
Main Auto
Wheel King
Economy Imports
Performance Leasing
Tire Outlet
- * denotes facilities owned by American Tire Distributors
- ** denotes Target Tire, Inc. facilities
Tires One
Parnelli Jones
Wheel Wizard
T.O. HAAS HOLDING CO., INC.
T.O. Haas Tire
Haas Tire
T.O. HAAS TIRE COMPANY, INC.
T.O. Haas Tire
Haas Tire
TEXAS MARKET TIRE HOLDINGS I, INC.
TEXAS MARKET TIRE, INC.
Big State Tire Supply
Big State
Shook Tire
Big State Wheel
ATD/Big State Tire Distributors
TARGET TIRE, INC.
Target Tire
Target Tire and Automotive Corporation
- * denotes facilities owned by American Tire Distributors
- ** denotes Target Tire, Inc. facilities
SCHEDULE 6.1(dd)
REAL PROPERTY
Schedule 6.1(u) is incorporated by reference.
- * denotes facilities owned by American Tire Distributors
- ** denotes Target Tire, Inc. facilities
EXHIBIT 31.1
CERTIFICATIONS
I, Richard P. Johnson, Chairman and Chief Executive Officer of American Tire
Distributors, Inc., certify that:
1. I have reviewed this quarterly report on Form 10-Q of American Tire
Distributors, Inc.;
2. Based on my knowledge, this report does not contain any untrue statement
of a material fact or omit to state a material fact necessary to make the
statements made, in light of the circumstances under which such statements
were made, not misleading with respect to the period covered by this
report;
3. Based on my knowledge, the financial statements, and other financial
information included in this report, fairly present in all material
respects the financial condition, results of operations and cash flows of
the registrant as of, and for, the periods presented in this report;
4. The registrant's other certifying officer and I are responsible for
establishing and maintaining disclosure controls and procedures (as
defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) for the registrant
and we have:
a. Designed such disclosure controls and procedures, or caused such
disclosure controls and procedures to be designed under our
supervision, to ensure that material information relating to the
registrant, including its consolidated subsidiaries, is made known
to us by others within those entities, particularly during the
period in which this report is being prepared;
b. Evaluated the effectiveness of the registrant's disclosure controls
and procedures and presented in this report our conclusions about
the effectiveness of the disclosure controls and procedures, as of
the end of the period covered by this report based on such
evaluation; and
c. Disclosed in this report any change in the registrant's internal
control over financial reporting that occurred during the
registrant's most recent fiscal quarter (the registrant's fourth
fiscal quarter in the case of an annual report) that has materially
affected, or is reasonably likely to materially affect, the
registrant's internal control over financial reporting; and
5. The registrant's other certifying officer and I have disclosed, based on
our most recent evaluation of internal control over financial reporting,
to the registrant's auditors and the audit committee of the registrant's
board of directors (or persons performing the equivalent function):
a. All significant deficiencies and material weaknesses in the design
or operation of internal control over financial reporting which are
reasonably likely to adversely affect the registrant's ability to
record, process, summarize and report financial information; and
b. Any fraud, whether or not material, that involves management or
other employees who have a significant role in the registrant's
internal control over financial reporting.
Date: November 15, 2004
/s/ RICHARD P. JOHNSON
---------------------------------------
Richard P. Johnson
Chairman and Chief Executive Officer
EXHIBIT 31.2
CERTIFICATIONS
I, Scott A. Deininger, Senior Vice President of Finance and Administration of
American Tire Distributors, Inc., certify that:
1. I have reviewed this quarterly report on Form 10-Q of American Tire
Distributors, Inc.;
2. Based on my knowledge, this report does not contain any untrue statement
of a material fact or omit to state a material fact necessary to make the
statements made, in light of the circumstances under which such statements
were made, not misleading with respect to the period covered by this
report;
3. Based on my knowledge, the financial statements, and other financial
information included in this report, fairly present in all material
respects the financial condition, results of operations and cash flows of
the registrant as of, and for, the periods presented in this report;
4. The registrant's other certifying officer and I are responsible for
establishing and maintaining disclosure controls and procedures (as
defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) for the registrant
and we have:
a. Designed such disclosure controls and procedures, or caused such
disclosure controls and procedures to be designed under our
supervision, to ensure that material information relating to the
registrant, including its consolidated subsidiaries, is made known
to us by others within those entities, particularly during the
period in which this report is being prepared;
b. Evaluated the effectiveness of the registrant's disclosure controls
and procedures and presented in this report our conclusions about
the effectiveness of the disclosure controls and procedures, as of
the end of the period covered by this report based on such
evaluation; and
c. Disclosed in this report any change in the registrant's internal
control over financial reporting that occurred during the
registrant's most recent fiscal quarter (the registrant's fourth
fiscal quarter in the case of an annual report) that has materially
affected, or is reasonably likely to materially affect, the
registrant's internal control over financial reporting; and
5. The registrant's other certifying officer and I have disclosed, based on
our most recent evaluation of internal control over financial reporting,
to the registrant's auditors and the audit committee of the registrant's
board of directors (or persons performing the equivalent function):
a. All significant deficiencies and material weaknesses in the design
or operation of internal control over financial reporting which are
reasonably likely to adversely affect the registrant's ability to
record, process, summarize and report financial information; and
b. Any fraud, whether or not material, that involves management or
other employees who have a significant role in the registrant's
internal control over financial reporting.
Date: November 15, 2004
/s/ SCOTT A. DEININGER
---------------------------------------
Scott A. Deininger
Senior Vice President of Finance and
Administration
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