EX-10.1



 





Exhibit 10.1



FIRST AMENDMENT TO THIRD AMENDED

AND RESTATED LOAN AND SECURITY AGREEMENT




     THIS FIRST AMENDMENT TO THIRD AMENDED AND RESTATED LOAN AND SECURITY
AGREEMENT (this “Amendment”) is made and entered into this
2nd day of April, 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”;
American Tire, Speed Merchant, Haas Holding and Haas Tire 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 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 deleting the reference to “Section 10.3” that is contained in
the first sentence of Section 6.1(j)of the Loan Agreement and by
substituting a new reference to “Section 10.3(a)” in lieu thereof.




     (b) By deleting Section 10.3 of the Loan Agreement and by
substituting the following new Section 10.3 in lieu thereof:



 









 






     Section 10.3
Officer’s Certificates.




     (a) On a quarterly basis at the time that the Borrowers
furnish the financial statements pursuant to Section 10.1(b) for
any Fiscal Month that is the last Fiscal Month of a Fiscal
Quarter (other than a Fiscal Quarter that is the last Fiscal
Quarter of a Fiscal Year) and on an annual basis at the time
that the Borrowers furnish the
financial statements pursuant to Section 10.1(a), a
certificate of the President of American Tire or of a Financial
Officer, in substantially the form attached hereto as Exhibit
D-1,




     (i) setting forth as of the end of each Fiscal Quarter
or Fiscal Year, as the case may be, the calculations
required to establish whether or not the Borrowers were in
compliance with the requirements of Sections 11.1, 11.2,
11.4, 11.5 and 11.6 as at the end of each respective period
and the calculations necessary to determine the Leverage
Ratio as at the end of each respective period,




     (ii) stating that the information on the schedules to
this Agreement (insofar as it relates to the transactions
provided for herein, the ability of the Borrower to repay
the Secured Obligations, or any of the Collateral) is true
and correct in all material respects as of the date of such
certificate, except (A) to the extent such information is
made exclusively with reference to an earlier date or (B)
any modifications to the information on such schedules are
as a result of changes in the nature of a Borrower’s or, if
applicable, any of its Subsidiaries’ business or operations
that may occur after the date hereof in the ordinary course
of business of such Borrower or Subsidiary so long as the
Administrative Agent has (or, if otherwise required by the
terms of this Agreement, the Required Lenders or all the
Lenders have) consented to such changes or such changes are
not violative of any provision of this Agreement, and




     (iii) stating that, based on a reasonably diligent
examination, no Default or Event of Default exists, or, if
such is not the case, specifying such Default or Event of
Default and its nature, when it occurred, whether it is
continuing and the steps being taken by the Borrowers with
respect to such Default or Event of Default;




     (b) On a monthly basis at the time that the Borrowers
furnish the financial statements pursuant to Section 10.1(b)
(other than a Fiscal Month that is the last Fiscal Month of a
Fiscal Quarter or is the last Fiscal Month of a Fiscal Year), a
certificate of



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the President of American Tire or of a Financial Officer, in substantially
the form attached hereto as Exhibit D-2,




     (i) stating that, based on a reasonably diligent
examination, no Default or Event of Default exists, or, if
such is not the case, specifying such Default or Event of
Default and its nature, when it occurred, whether it is
continuing and the steps being taken by the Borrowers with
respect to such Default or Event of Default; and




     (ii) certifying that such financial statements fairly
present the financial condition and results of operations of
the Borrowers (subject to normal year-end audit adjustments)
for the applicable period.




     (c) By deleting Exhibit D to the Loan Agreement and by substituting
in lieu thereof Exhibit D-1 and Exhibit D-2 attached to this Amendment.



     3. 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.



     4. 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);
and 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 security interests
and liens.



     5. 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.



     6. 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.



     7. 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.



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     8. Expenses of Agents and Lenders. Borrowers jointly and severally agree
to pay, on demand, all 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.



     9. 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.



     10. Successors and Assigns. This Amendment shall be binding upon and inure
to the benefit of the parties hereto and their respective successors and
assigns.



     11. 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.



     12. 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.



     13. 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.



     14. 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.



     15. 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.



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     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
	[Corporate Seal]
	 	 	 	 
	 
	 	 	 	 
	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
	[Corporate Seal]
	 	 	 	 
	 
	 	 	 	 
	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
	[Corporate Seal]
	 	 	 	 
	 
	 	 	 	 
	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
	[Corporate Seal]
	 	 	 	 





[Signatures continued on following page.]


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	 	 	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/ JOHN T. TRAINOR
	 	 	 	 	
 
	

	 	 	 	Name:
	 	JOHN T. TRAINOR
	

	 	 	 	 	 	
 
	

	 	 	 	Title:
	 	DIRECTOR
	

	 	 	 	 	 	
 
	 
	 	 	 	 	 	 
	 	 	THE CIT
GROUP/BUSINESS CREDIT, INC.,
as Documentation Agent and as a Lender
	 
	 	 	 	 	 	 
	 	 	By:	 	/s/ JOHN THOMAS
	 	 	 	 	
 
	

	 	 	 	Name:
	 	JOHN THOMAS
	

	 	 	 	 	 	
 
	

	 	 	 	Title:
	 	ASSISTANT VICE PRESIDENT
	

	 	 	 	 	 	
 
	 
	 	 	 	 	 	 
	 	 	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 H. DOOLITTLE
	 	 	 	 	
 
	

	 	 	 	Name:
	 	WILLIAM H. DOOLITTLE
	

	 	 	 	 	 	
 
	

	 	 	 	Title:
	 	DULY AUTHORIZED SIGNATORY
	

	 	 	 	 	 	
 







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EXHIBIT D-1




FORM OF COMPLIANCE CERTIFICATE

(Quarterly/Annual)




     The
undersigned,
                                   ,
the                                     of American Tire Distributors, Inc., a Delaware
corporation (the “Corporation”), hereby certifies to the Administrative Agent
under and as defined in the Third Amended and Restated Loan and Security
Agreement dated as of March 19, 2004 (as amended and in effect from time to
time, the “Loan Agreement”), in accordance with the provisions of Section
10.3(a) of the Loan Agreement, that:



     1. As
of                                     [date of last day of Fiscal Quarter or Fiscal Year], the
Borrowers were/were not in compliance with the covenants set forth in Sections
11.1, 11.2, 11.4, 11.5 and 11.6 of the Loan Agreement, as detailed on the
worksheet attached hereto as Exhibit A.



     2. All Schedules to the Loan Agreement are correct and accurate as of the
date hereof after taking into account the revised and/or supplemental
information reflected on the Schedules attached hereto as Exhibit B.



     3. Based on an examination sufficient to enable me to make an informed
statement, no Default or Event of Default exists as of the date hereof [other
than:1].



     IN WITNESS WHEREOF, the undersigned has executed and delivered this
Certificate as of
                 ,
200_.



	 	 	 	 	 
	 	 	
 
	

	 	Title:	 	 
	

	 	 	 	
 
	 
	 	 	 	 















	1	 	Specify such Default or Event of Default and its nature, when it
occurred, whether it is continuing and the steps being taken by the Borrowers
with respect to such Default or Event of Default.




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EXHIBIT D-1




FORM OF COMPLIANCE CERTIFICATE

(Monthly)




     The
undersigned,
                                ,
the                                  of American Tire Distributors, Inc., a Delaware
corporation (the “Corporation”), hereby certifies to the Administrative Agent
under and as defined in the Third Amended and Restated Loan and Security
Agreement dated as of March 19,2004 (as amended and in effect from time to
time, the “Loan Agreement”), in accordance with the provisions of Section
10.3(b) of the Loan Agreement, that:



     1. The attached financial statements fairly present the financial
condition and results of operations of the Borrowers (subject to normal
year-end audit adjustments) for the applicable period.



     2. Based on an examination sufficient to enable me to make an informed
statement, no Default or Event of Default exists as of the date hereof [other
than:1].



     IN WITNESS WHEREOF, the undersigned has executed and delivered this
Certificate as of
                ,200     .



	 	 	 	 	 
	 	 	
 
	

	 	Title:	 	 
	

	 	 	 	
 
	 
	 	 	 	 















	1	 	Specify such Default or Event of Default and its nature, when it
occurred, whether it is continuing and the steps being taken by the Borrowers
with respect to such Default or Event of Default.




8