SECOND AMENDMENT AGREEMENT
This SECOND AMENDMENT AGREEMENT ("this Agreement"), dated as of May 1,
2007 among SMP MOTOR PRODUCTS LTD., a corporation amalgamated under the laws of
Canada ("Borrower"); the other Credit Parties signatory hereto; GE CANADA
FINANCE HOLDING COMPANY, a Nova Scotia unlimited liability company (in its
individual capacity, "GE Finance"), for itself, as Lender, and as Agent for the
Secured Parties; the other Lenders signatory hereto from time to time. GE
Capital Markets, Inc. shall act as Lead Arranger and Bookrunner.
RECITALS:
A. The parties hereto have entered into the Credit Agreement dated as of
December 29, 2005, as amended by a First Amendment Agreement dated as of March
20, 2007 (as amended, the "Credit Agreement"); capitalized terms used in this
Agreement and not otherwise defined in this Agreement shall have the meanings
ascribed to them in the Credit Agreement; and
B. The parties hereto desire to amend the Credit Agreement to provide for a fee
for Borrower's non-use of available funds under the Credit Agreement, on the
terms and conditions set forth in this Agreement; and
C. In order to give effect to the foregoing, the Borrower, Agent and Lenders
have agreed to amend the Credit Agreement on the terms and conditions set forth
herein, and the other Credit Parties have agreed to consent to the amendments
contemplated by this Agreement; and
D. These Recitals shall be construed as part of this Agreement.
NOW THEREFORE, in consideration of the mutual agreements herein contained
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto agree as follows:
1. REFERENCES. Unless otherwise expressly stated herein, all references in this
Agreement to clauses, Sections, Articles, Exhibits, Annexes and Schedules are
references to clauses, Sections, Articles, Exhibits, Annexes and Schedules of or
to the Credit Agreement.
2. AMENDMENT TO SECTION 1.9 OF THE CREDIT AGREEMENT. Effective as of March 20,
2007, Section 1.9 of the Credit Agreement is hereby deleted and replaced with
the following:
1.9 Fees.
(a) Borrower shall pay to GE Finance, individually, the Fees
specified in the GE Finance Fee Letter to be payable by the Borrower at
the times specified for payment therein.
(b) As additional compensation for the Lenders, Borrower shall pay
to Agent, for the ratable benefit of such Lenders, in arrears, on (A) the
first Business Day of each month prior to the earlier of (i) the date on
which the aggregate amount of the Term Loan advanced under this Agreement
equals Twelve Million US Dollars ($12,000,000) (such date, the "Final
Advance Date") and (ii) the Commitment Termination Date and (B) the
earlier to occur of (i) the Final Advance Date and (ii) the Commitment
Termination Date, a Fee for Borrower's non-use of available funds in an
amount equal to one-quarter of one percent (0.25%) per annum (calculated
on the basis of a 360-day year for actual days elapsed) multiplied by the
difference between (x) Twelve Million US Dollars ($12,000,000) and (y) the
largest outstanding balance of the Term Loan at any time during the period
from March 20, 2007 to the date on which such Fee is due.
3. REPRESENTATIONS. Each Credit Party represents and warrants to Lenders and
Agent that, as of the date hereof:
(a) This Agreement has been duly authorized, executed and delivered by
it, and this Agreement and the Credit Agreement, as amended hereby,
constitutes legal, valid and binding obligations and are enforceable
in accordance with their respective terms, subject to applicable
bankruptcy, insolvency, reorganization, moratorium or other laws
affecting creditor's rights generally and subject to general
principles of equity, regardless of whether considered in a
proceeding in equity or at law.
(b) Upon the effectiveness of this Agreement, each Credit Party hereby
confirms that the representations and warranties made by it in the
Credit Agreement and the Collateral Documents are true and correct
on and as of such date, except to the extent that such
representation or warranty expressly relates to an earlier date.
(c) Such Credit Party is in full compliance with its covenants in the
Credit Agreement and the Collateral Documents, and no Default or
Event of Default has occurred and is continuing on the date hereof
after giving effect to the amendments set forth herein.
4. CREDIT AGREEMENT IN EFFECT. Except as specifically stated herein, the Credit
Agreement shall continue in full force and effect in accordance with the
provisions thereof and is hereby ratified and confirmed.
5. REFERENCE TO AND EFFECT ON THE CREDIT AGREEMENT. After this Agreement becomes
effective as provided herein, each reference in the Credit Agreement to "this
Agreement", "hereunder", "hereof", "herein", "hereto", "hereby" and similar
expressions, and each reference to "the Credit Agreement" and "the Agreement" in
any Schedule or Annex to the Credit Agreement and, unless the context otherwise
requires, any Collateral Documents shall mean and refer to the Credit Agreement,
as amended by this Agreement.
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6. CONFIRMATION OF GUARANTEES AND SECURITY. Each Credit Party other than
Borrower acknowledges, confirms and agrees that the guarantee executed by such
Credit Party to and in favour of Agent on behalf of the Secured Parties in
support of the obligations of Borrower under the Credit Agreement and the other
Loan Documents (collectively, the "Guarantees") remains in full force and
effect, unamended and supports the repayment of the Fees, as amended hereunder.
In addition, each Credit Party (including Borrower) acknowledges, confirms and
agrees that (i) all security granted by each Credit Party to and in favour of
Agent on behalf of the Secured Parties as security for the obligations of such
Credit Party under the Credit Agreement (including the Guarantees) and the other
Loan Documents to which it is a party (collectively, the "Credit Party
Security") remains in full force and effect, unamended, and the security
interests, mortgages, charges, liens, assignments, transfers and pledges granted
by each Credit Party in favour of Agent on behalf of the Secured Parties
pursuant to the Credit Party Security continue to secure and extend to all
debts, liabilities and obligations of such Credit Party to Agent and the Secured
Parties (including the Guarantees), whether direct or indirect, absolute or
contingent, present or future, pursuant to, arising out of, or in connection
with, the Credit Agreement (as amended hereby) and the other Loan Documents to
which such Credit Party is a party; and (ii) the Guarantees and the Credit Party
Security are all hereby ratified and confirmed.
7. APPLICABLE LAW. This Agreement shall be construed in accordance with and
governed by the laws of Ontario and the laws of Canada applicable therein.
8. COUNTERPARTS. This Agreement may be executed in any number of counterparts,
each of which shall be an original but all of which, when taken together, shall
constitute one instrument. Delivery of an executed counterpart of a signature
page of this Agreement by facsimile shall be as effective as delivery of a
manually executed counterpart of this Agreement.
9. EXPENSES. Borrower agrees to reimburse Agent for its out-of-pocket expenses
in connection with this Agreement, including the reasonable legal fees and
disbursements of Blake, Xxxxxxx & Xxxxxxx LLP, counsel for Agent.
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IN WITNESS WHEREOF, the parties hereto have caused this Second Amendment
Agreement to be duly executed by their respective authorized officers as of the
date first above written.
SMP MOTOR PRODUCTS LTD.
By:
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Name:
Title:
GE CANADA FINANCE HOLDING COMPANY,
as Agent and Lender
By:
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Duly Authorized Signatory
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BANK OF AMERICA N.A. BY ITS CANADA BRANCH
By:
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Name:
Title:
By:
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Name:
Title:
HSBC BANK CANADA
By:
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Name:
Title:
By:
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Name:
Title:
JPMORGAN CHASE BANK, N.A., TORONTO BRANCH
By:
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Name:
Title:
By:
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Name:
Title:
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XXXXX FARGO FINANCIAL CORPORATION CANADA
By:
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Name:
Title:
By:
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Name:
Title:
WACHOVIA CAPITAL FINANCE CANADA
By:
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Name:
Title:
By:
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Name:
Title:
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The following Persons are signatories to this Second Amendment Agreement in
their capacity as Credit Parties and not as Borrower.
STANDARD MOTOR PRODUCTS, INC.
By:
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Name:
Title:
STANRIC, INC.
By:
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Name:
Title:
MARDEVCO CREDIT CORP.
By:
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Name:
Title:
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The undersigned is a signatory to this Agreement solely in its capacity as
agent on behalf of the Agent and Secured Parties hereunder under the Security
Agreement dated February 7, 2003, as amended, entered into between the
undersigned and the Credit Parties that are signatory thereto.
GENERAL ELECTRIC CAPITAL CORPORATION,
as US Agent
By:
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Name:
Title:
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