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EXHIBIT 4a
FIRST AMENDMENT AGREEMENT
This First Amendment Agreement is made as of the 10th day of December,
1998, by and among THE STANDARD PRODUCTS COMPANY, an Ohio corporation
("Borrower"), NATIONAL CITY BANK, as agent ("Agent"), and the banking
institutions named in Schedule 1 to the Credit Agreement, as defined herein (the
"Banks"):
WHEREAS, Borrower, Agent and the Banks are parties to a certain Credit
Agreement dated as of September 26, 1997, as it may from time to time be
amended, restated or otherwise modified (the "Credit Agreement");
WHEREAS, Borrower, Agent and the Banks desire to amend the Credit
Agreement to modify the net worth financial covenant and by modifying certain
other provisions thereof; and
WHEREAS, each term used herein shall be defined in accordance with the
Credit Agreement;
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants herein and for other valuable considerations, Borrower, Agent and the
Banks agree as follows:
1. The Credit Agreement is hereby amended by deleting Section 5.7(a)
in its entirety and by inserting in place thereof the following:
(a) NET WORTH. Borrower shall not suffer or permit its Consolidated
Net Worth at any time, based upon Borrower's financial statements for
the most recent fiscal quarter, to fall below the minimum amount
required, which minimum amount required shall be One Hundred Sixty
Million Dollars ($160,000,000) on the Closing Date through June 29,
1998, with such minimum amount required to be positively increased by
the Increase Amount on June 30, 1998, and by an additional Increase
Amount on each successive June 30 thereafter; provided, however, for
purposes of calculating Consolidated Net Worth for this Subsection
5.7(a), the following shall be added to such calculation: (i) Fifteen
Million Dollars ($15,000,000) of goodwill reported by Borrower in
connection with the acquisition by Borrower of the assets of OEM/Xxxxxx
Corporation, and (ii) an amount equal to the actual amount paid by
Borrower in connection with the repurchase by Borrower from time to
time from and after September 26, 1997, of Borrower's common shares, in
an amount not to exceed Thirty-Five Million Dollars ($35,000,000). As
used herein, the term "Increase Amount" shall mean an amount equal to
fifty percent (50%) of Borrower's Consolidated Net Earnings (with no
deduction for losses) for the fiscal year then ended.
2. Borrower hereby represents and warrants to Agent and the Banks that
(a) Borrower has the corporate power and authority to execute and deliver this
First Amendment Agreement; (b) the official executing this First Amendment
Agreement has been duly authorized to execute and deliver the same and bind
Borrower with respect to the provisions hereof; (c) the
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execution and delivery hereof by Borrower and the performance and observance by
Borrower of the provisions hereof do not violate or conflict with the
organizational documents of Borrower or any law applicable to Borrower or result
in a breach of any provision of or constitute a default under any other
agreement, instrument or document binding upon or enforceable against Borrower;
(d) no Event of Default exists under the Credit Agreement, nor will any occur
immediately after the execution and delivery of the First Amendment Agreement or
by the performance or observance of any provision hereof; (e) Borrower does not
have any claim or offset against, or defense or counterclaim to, any of
Borrower's obligations or liabilities under the Credit Agreement or any Related
Writing, and Borrower and each Subsidiary hereby waives and releases Agent and
each of the Banks, and their respective directors, officers, employees,
attorneys, affiliates and subsidiaries, from any and all such claims, offsets,
defenses and counterclaims of which Borrower is aware, such waiver and release
being with full knowledge and understanding of the circumstances and effect
thereof and after having consulted legal counsel with respect thereto; and (f)
this First Amendment Agreement constitutes a valid and binding obligation of
Borrower in every respect, enforceable in accordance with its terms.
3. Each reference that is made in the Credit Agreement or any other
writing shall hereafter be construed as a reference to the Credit Agreement as
amended hereby. Except as herein otherwise specifically provided, all provisions
of the Credit Agreement shall remain in full force and effect and be unaffected
hereby.
4. This First Amendment Agreement may be executed in any number of
counterparts by different parties hereto in separate counterparts and by
facsimile signature, each of which when so executed and delivered shall be
deemed to be an original and all of which taken together shall constitute but
one and the same agreement.
5. The rights and obligations of all parties hereto shall be governed
by the laws of the State of Ohio.
[The remainder of this page is intentionally blank.]
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6. JURY TRIAL WAIVER. BORROWER, AGENT AND EACH OF THE BANKS WAIVE ANY
RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING IN
CONTRACT, TORT OR OTHERWISE, BETWEEN BORROWER, AGENT AND THE BANKS, OR ANY
THEREOF, ARISING OUT OF, IN CONNECTION WITH, RELATED TO, OR INCIDENTAL TO THE
RELATIONSHIP ESTABLISHED AMONG THEM IN CONNECTION WITH THIS AGREEMENT OR ANY
NOTE OR OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN
CONNECTION HEREWITH OR THE TRANSACTIONS RELATED THERETO.
Address: 0000 Xxxxx Xxxxxx Xxxx THE STANDARD PRODUCTS COMPANY
Xxxxxxxx, Xxxxxxxx 00000
Attention: Mr. Xxxxxxx Xxxx By: /s/ Xxxxxxx Xxxx
Treasurer ---------------------------
Treasurer
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Address: National City Bank Building NATIONAL CITY BANK
0000 Xxxx Xxxxx Xxxxxx, 00xx Floor As a Bank and as Agent
Xxxxxxxxx, Xxxx 00000-0000
Attention: Xx. Xxxxxxxx X. Xxxx By: /s/ Xxxxxxxx X. Xxxx
Senior Vice President ---------------------------
Senior Vice President
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Address: 000 Xxxxxxxx Xxx. XXXXXXXX XXXX
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Mr. Xxxxxxx Xxxx By: /s/ Xxxxxxx X. Xxxx
Vice President ---------------------------
Vice President
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Address: 000 Xxxxxxxx Xxx., 0xx Xxxxx XXX BANK
Detroit, Michigan 48226
Attention: Xx. Xxxx Xxxxx By: /s/ Xxxx Xx X. Xxxxxx
Vice President ---------------------------
Vice President
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[Signatures continued on next page]
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Address: 000 Xxxxxx Xxxxxx XXXXXXX NATIONAL ASSOCIATION
Xxxxxxxxx, Xxxx 00000
Attn: Mr. X.X. Xxxxxx By: /s/ X. X. Xxxxxx
Vice President ---------------------------
Vice President
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Address: One Wall Street, 22nd Floor THE BANK OF NEW YORK
New York, New York 10286
Attn: Xx. Xxxxxxx X. Xxxxxx, Xx. By: /s/ Xxxxxxx Xxxxxx
Vice President ---------------------------
Vice President
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Address: 000 Xxxx Xxxxxx Xxxxxx XXXXXX TRUST AND SAVINGS BANK
00xx Xxxxx, Xxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xx. Xxxxx Law By: /s/ Xxxxx X. Law
Vice President ---------------------------
Vice President
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Address: 000 Xxxxxxx Xxxxxx BANKBOSTON, N.A.
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xx. Xxx XxxXxxxxxx By: /s/ Xxxxxx X. XxxXxxxxxx
Vice President ---------------------------
Vice President
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GUARANTOR ACKNOWLEDGMENT
Each of the undersigned acknowledges and agrees (i) to remain bound by
the terms and conditions of the Guaranty of Payment of Debt and the other Loan
Documents executed and delivered by each of the undersigned to Agent for the
benefit of the Banks, and (ii) that the liability of each of the undersigned
pursuant to such Guaranty of Payment of Debt or other Loan Documents shall
continue and remain in full force and effect. Each of the undersigned hereby
consents to Borrower's execution of the First Amendment Agreement and further
agrees that Agent and the Banks may rely on this acknowledgment in entering into
the First Amendment Agreement.
IN WITNESS WHEREOF, the foregoing acknowledgment has been executed and
delivered as of December 10, 1998.
Address: 000 Xxxxx Xxxxxx XXXXXX RUBBER CORPORATION
Xxxxxx, Xxxxxxx 00000
By: /s/ Xxxxxx X. Xxxxxx, Xx.
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Assistant Treasurer
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Address: 000 Xxxxx Xxxxxxx Xxxxxx XXXX INDUSTRIES, INC.
Xxxxxxxxxx, Xxxxxxx 00000
By: /s/ Xxxxxxx Xxxx
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Assistant Treasurer
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