DATE: October 23, 2018

Transcription

1 DATE: October 23, 2018 RE: Supplement to Syndication Procedures 1 related to American Tire Distributors, Inc. (the Company ) Superpriority, Secured First In Last Out (FILO) Debtor-In-Possession Term Loan Facility (the U.S. Junior FILO Facility ) TIME SENSITIVE: Reference is made to those certain Syndication Procedures related to the Opportunity to participate as a lender in the U.S. Junior FILO Facility of the Company. This Supplement hereby amends and modifies the Syndication Procedures as set forth herein. 1. Paragraph 13 of the Syndication Procedures is amended and replaced in its entirety with the following: Concurrently with the funding of the Delayed Draw U.S. Junior FILO Loans, the U.S. Junior FILO Loans and unused U.S. Junior FILO Commitments shall be reallocated (by assignment or otherwise) (a) to the Initial U.S. Junior FILO Lenders who are Pre-Petition Noteholders with respect to the Senior Subordinated Notes owned by such Initial U.S. Junior FILO Lender (x) based on such Initial U.S. Junior FILO Lenders pro rata portion calculated as follows: the fraction (expressed as a factor) the numerator of which is the outstanding principal amount of Subordinated Notes owned by such Initial U.S. Junior FILO Lender as of October 4, 2018 and the denominator of which is the aggregate outstanding principal amount of all Subordinated Notes as of the Record Date, which amount is equal to $1,050,000,000; provided that at the election of such Initial U.S. Junior FILO Lenders who are Pre-Petition Noteholders, to the extent such Initial U.S. Junior FILO Lender owned an outstanding principal amount of Subordinated Notes on the Record Date in an amount greater than the outstanding principal amount of Subordinated Notes as of October 4, 2018, the numerator of such fraction shall be increased to such greater amount and (y) with respect to any amounts of the Pre-Petition Noteholder Allocation which are not allocated to the Initial Junior FILO Lenders pursuant to clause (a)(x) above or are not elected to be purchased by a Eligible Holder pursuant to these Syndication Procedures, based on such Initial U.S. Junior FILO Lenders pro rata portion calculated as follows: the fraction (expressed as a factor) the numerator of which is the outstanding principal amount of U.S. Junior FILO Loans and unused U.S. Junior FILO Commitments allocated to such Initial U.S. Junior FILO Lender based on the principal amount of Subordinated Notes held by such Initial U.S. Junior FILO Lender as of October 4, 2018 and the denominator of which is the aggregate outstanding principal amount of all outstanding principal amount of U.S. Junior FILO Loans and unused U.S. Junior FILO Commitments allocated to the Initial U.S. Junior FILO Lenders based on the principal amount of Subordinated Notes held by all U.S. Junior FILO Lenders as of October 4, 2018 and (b) to the Initial U.S. Junior FILO Lenders who are Pre-Petition Term Lenders with respect to the Pre-Petition Term Loans 1 Capitalized terms used herein but not defined herein have the meanings ascribed to them in the Syndication Procedures.

2 owned by such Initial U.S. Junior FILO Lender as agreed to among the Required RSA FILO Lenders. 2. Annex II (Master Assignment and Assumption Agreement to the DIP Loan Agreement) is hereby amended and restated in its entirety in the form attached hereto as Exhibit 1. As a reminder, the deadline for participating in the Opportunity is 5:00 p.m., New York City time, on October 24, All notices and other communications should be addressed to Kurtzman Carson Consultants LLC, as Information Agent, at the following: Kurtzman Carson Consultants 1290 Avenue of the Americas 9th Floor New York, NY Telephone: (917) Attn: American Tire Distributors, Inc. ATDinfo@kccllc.com Please review the attached documents for further information and instructions. Please contact Kurtzman Carson Consultants LLC at (917) or via at ATDinfo@kccllc.com with any questions.

3 Exhibit 1 [Attached.]

4 MASTER ASSIGNMENT AND ASSUMPTION This Master Assignment and Assumption (the "Master Assignment and Assumption") is dated as of the Effective Date set forth below and is entered into by and between each Assignor identified in item 1 below (each, an "Assignor") and each Assignee identified in item 2 below (each an "Assignee"). It is understood and agreed that the rights and obligations of the Assignors and the Assignees hereunder are several and not joint. Capitalized terms used but not defined herein shall have the meanings given to them in the DIP Credit Agreement identified below (as further amended, supplemented or otherwise modified from time to time, the "DIP Credit Agreement"), receipt of a copy of which is hereby acknowledged by each Assignee. The Standard Terms and Conditions set forth in Annex 1 attached hereto are hereby agreed to and incorporated herein by reference and made a part of this Master Assignment and Assumption as if set forth herein in full. For the agreed consideration specified herein, each Assignor hereby irrevocably sells and assigns to each Assignee, and each Assignee hereby irrevocably purchases and assumes from each Assignor, subject to and in accordance with the Standard Terms and Conditions and the DIP Credit Agreement, as of the Effective Date inserted by the Agent as contemplated below: (i) each Assignor s share of outstanding U.S. Junior FILO Loans and U.S. Junior FILO Commitments and all rights and obligations, including, without limitation, any rights with respect to the Closing Payment and the Exit Payment, in its capacity as a U.S. Junior FILO Lender under the DIP Credit Agreement and any other documents or instruments delivered pursuant thereto to the extent related to the amount assigned hereunder of such U.S. Junior FILO Loans and U.S. Junior FILO Commitments and such outstanding rights and obligations of such Assignor under the U.S. Junior FILO Facility, such that, after giving effect to all such assignments and purchases contemplated hereby, the U.S. Junior FILO Loans and U.S. Junior FILO Commitments outstanding on the Effective Date will be held by the U.S. Junior FILO Lenders in the respective principal amounts set forth on Schedule I attached hereto; and (ii) to the extent permitted to be assigned under applicable law, all claims, suits, causes of action and any other right of such Assignor (in its capacity as a Lender) against any Person, whether known or unknown, arising under or in connection with the DIP Credit Agreement, any other documents or instruments delivered pursuant thereto or the loan transactions governed thereby or in any way based on or related to any of the foregoing, including contract claims, tort claims, malpractice claims, statutory claims and all other claims at law or in equity related to the rights and obligations sold and assigned pursuant to clause (i) above (the rights and obligations sold and assigned pursuant to clauses (i) and (ii) above being referred to herein collectively as an "Assigned Interest"). Each such sale and assignment is without recourse to the Assignors and, except as expressly provided in this Master Assignment and Assumption, without representation or warranty by any Assignor. This Master Assignment and Assumption shall constitute notice to the Agent of completion of the FILO Syndication in accordance with Section 9.04(e) of the DIP Credit Agreement. Notwithstanding anything in the DIP Credit Agreement to the contrary (but subject in any event to Section 2.17 of the DIP Credit Agreement), the Assignors and Assignees hereby (i) agree that any payments (including the purchase price) related to the purchase, assumption sale and assignment of the Assigned Interests and the Closing Payment with respect to the Delayed Draw U.S. Junior FILO Loans shall be allocated among, and paid to, the U.S. Junior FILO Lenders (or their nominees) as provided in the funds flow statement attached hereto in Schedule II and (ii) instruct the Agent to pay such Closing Payment out of the proceeds of the Delayed Draw U.S. Junior FILO Loan funded by the Escrow Agent to the Agent to the applicable U.S. Junior FILO Lenders as provided in the funds flow statement attached hereto in Schedule II. The Agent is a third party beneficiary of this provision and such provision may not be modified or amended without the consent of the Agent v8

5 Assignors: Assignees: Borrower(s) Agent: DIP Credit Agreement: Effective Date: As set forth on Exhibit A As set forth on Exhibit B The U.S. Borrowers Bank of America, N.A., as the administrative agent and the collateral agent under the Credit Agreement. The Post-Petition Credit Agreement dated as of October 9, 2018, among American Tire Distributors, Inc., a Delaware corporation (the "Company"), American Tire Distributors Holdings, Inc., a Delaware corporation ("Holdings"), The Hercules Tire & Rubber Company, a Connecticut corporation ("Hercules"), National Tire Distributors Inc. Distributeur de Pneus National Inc., a corporation organized under the laws of Canada ("NTD"), and Hercules Tire International Inc. / Pneus International Hercules Inc., a corporation organized under the laws of Ontario ("Hercules Canada"), and each other subsidiary or affiliate of a Loan Party from time to time party thereto, the Lenders parties thereto, and Bank of America, N.A., as administrative agent and collateral agent for the Lenders thereunder (the "Agent"). [ ] The terms set forth in this Master Assignment and Assumption are hereby agreed to: 2

6 ASSIGNOR [NAME OF ASSIGNOR] By: Name: Title: [Signature Page to Master Assignment and Assumption ATD]

7 ASSIGNEE [NAME OF ASSIGNEE] By: Name: Title: [Signature Page to Master Assignment and Assumption ATD]

8 Consented to and Accepted: AMERICAN TIRE DISTRIBUTORS, INC. By: Name: Title: [Signature Page to Master Assignment and Assumption ATD]

9 Annex 1 to Master Assignment and Assumption STANDARD TERMS AND CONDITIONS FOR ASSIGNMENT AND ASSUMPTION Representations and Warranties. Assignors. Each Assignor: (a) represents and warrants that (i) it is the legal and beneficial owner of the relevant Assigned Interest, (ii) such Assigned Interest is free and clear of any lien, encumbrance or other adverse claim, and (iii) it has full power and authority, and has taken all action necessary, to execute and deliver this Master Assignment and Assumption and to consummate the transactions contemplated hereby; and (b) assumes no responsibility with respect to (i) any statements, warranties or representations made in or in connection with the DIP Credit Agreement or any other Loan Document, (ii) the execution, legality, validity, enforceability, genuineness, sufficiency or value of the Loan Documents or any collateral thereunder, (iii) the financial condition of the Company, any of its Subsidiaries or Affiliates or any other Person obligated in respect of any Loan Document or (iv) the performance or observance by the Company, any of its Subsidiaries or Affiliates or any other Person of any of their respective obligations under any Loan Document. Assignees. Each Assignee: (a) represents and warrants that (i) it is an Eligible Assignee and has full power and authority, and has taken all action necessary, to execute and deliver this Master Assignment and Assumption and to consummate the transactions contemplated hereby and to become a Lender under the DIP Credit Agreement, (ii) it satisfies the requirements, if any, specified in the DIP Credit Agreement that are required to be satisfied by it in order to acquire the relevant Assigned Interest and become a Lender, (iii) from and after the Effective Date, it shall be bound by the provisions of the DIP Credit Agreement as a Lender thereunder and, to the extent of the relevant Assigned Interest, shall have the obligations of a Lender thereunder, (iv) it has received a copy of the DIP Credit Agreement, together with copies of the most recent financial statements referred to in Section 3.04(a) or delivered pursuant to Section 5.01 thereof, as applicable, and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Master Assignment and Assumption and to purchase the relevant Assigned Interest on the basis of which it has made such analysis and decision independently and without reliance on the Agent or any other Lender, and (v) if it is a Foreign Lender, attached to the Master Assignment and Assumption is any documentation required to be delivered by it pursuant to the terms of the DIP Credit Agreement, duly completed and executed by such Assignee; and (b) agrees that (i) it will, independently and without reliance on the Agent, the relevant Assignor or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Loan Documents, (ii) it appoints and authorizes the Agent to take such action on its behalf and to exercise such powers under the DIP Credit Agreement as are delegated to the Agent, by the terms thereof, together with such powers as are reasonably incidental thereto, and (iii) it will perform in accordance with their terms all of the obligations which by the terms of the Loan Documents are required to be performed by it as a Lender. Payments. From and after the Effective Date, the Agent shall make all payments in respect of each Assigned Interests (including payments of principal, interest, fees, premiums and other amounts) to the relevant Assignors for amounts which have accrued to but excluding the Effective Date and to the relevant Assignees for amounts which have accrued from and after the Effective Date. General Provisions. This Master Assignment and Assumption shall be binding upon, and inure to the benefit of, the parties hereto and their respective successors and assigns. This Master Assignment and Assumption may be executed in any number of counterparts, which together shall constitute one instrument. Delivery of an executed counterpart of a signature page of this Master v8 1

10 Assignment and Assumption by facsimile shall be effective as delivery of a manually executed counterpart of this Master Assignment and Assumption. This Master Assignment and Assumption shall be construed in accordance with and governed by the laws of the State of New York v8 2

11 EXHIBIT A ASSIGNORS [See Attached] v8 3

12 EXHIBIT B ASSIGNEES [See Attached] v8 4

13 SCHEDULE I PRINCIPAL AMOUNT OF U.S. JUNIOR FILO LOANS AND U.S. JUNIOR FILO COMMITMENTS AS OF THE EFFECTIVE DATE [See Attached] v8 5

14 SCHEDULE II Funds Flow Statement [See attached] v8 6