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EXHIBIT 4(b)
FIRST AMENDMENT TO SENIOR NOTES
FIRST AMENDMENT TO SENIOR NOTES, dated as of September 22, 1995, by and
between THE STANDARD PRODUCTS COMPANY, an Ohio corporation (the "Company"), and
METROPOLITAN LIFE INSURANCE COMPANY, METROPOLITAN PROPERTY AND CASUALTY
COMPANY, and METROPOLITAN INSURANCE AND ANNUITY COMPANY (collectively, the
"Lenders" and individually, a "Lender").
WITNESSETH THAT:
WHEREAS, the Company and each of the Lenders entered into an Agreement,
dated as of December 16, 1993 (the "Agreement"), pursuant to which the Lenders
agreed to loan to the Company (the "Loan") the aggregate principal amount of
Seventy-Five Million Dollars ($75,000,000); and
WHEREAS, the Loan is evidenced by the Company's 6.55% Senior Notes due
December 16, 2003 issued to the Lenders, dated December 16, 1993 and being
Registered Xx. X-0, X-0 and R-3 in the aggregate principal amount of
Seventy-Five Million Dollars ($75,000,000) (collectively, the "Notes" and
individually, a "Note"); and
WHEREAS, the Company, Xxxxxx Rubber Company ("Xxxxxx"), Xxxx
Industries, Inc. ("Xxxx"), 5 Rubber Corporation ("5 Rubber"), and The Standard
Products Funding Corporation, a Delaware corporation and a wholly owned
subsidiary of the Company (the "Receivables Subsidiary"), desire to enter into
a Purchase and Sale Agreement that will provide, among other matters, for: the
sale by the Company, Xxxxxx, Xxxx and 5 Rubber (each an "Originator"), and the
purchase by the Receivables Subsidiary, of all the receivables and related
assets ("Receivables") then and thereafter owned by the Originators at a
purchase price equal to the face amount thereof less certain discounts
(including program and other expenses); a portion of the purchase price owed by
the Receivables Subsidiary for the Receivables purchased from the Originators
to be payable in the form of a promissory note; and the Originators to borrow
money from time to time from the Receivables Subsidiary; and
WHEREAS, the Company and the Receivables Subsidiary desire to enter
into a Receivables Purchase Agreement among the Receivables Subsidiary, the
Company, Clipper Receivables Corporation, State Street Boston Capital
Corporation and National City Bank that will provide, among other matters, for:
the sale by the Receivables Subsidiary, and the purchase by Clipper Receivables
Corporation, of interests in the Receivables purchased from the Originators at
a purchase price equal to the face amount thereof less certain discounts
(including reserves), representations and warranties by the Company and the
Receivables Subsidiary; affirmative and negative covenants of the Company and
the Receivables Subsidiary, including certain reporting requirements and
financial covenants of the Receivables Subsidiary and of the Company and its
subsidiaries; the appointment of the Company as
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Master Servicer to collect the Receivables; the grant of a security
interest in the Receivables; liquidation events; and indemnification
obligations of the Company and the Receivables Subsidiary; and
WHEREAS, the parties desire to amend the Notes;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements contained herein, the parties hereto agree as follows:
1. Effect of Amendment; Definitions.
Each Note shall be and hereby is amended as provided in Section 2
hereof. Except as expressly amended in Section 2 hereof, each Note shall
continue in full force and effect in accordance with the provisions thereof on
the date hereof. As used therein, the terms "Note", "this Note", "herein",
"hereinafter", "hereto", "hereof", and words of similar import shall, unless
the context otherwise requires, mean each Note as amended and modified by this
Amendment. Capitalized terms used but not defined in this Amendment (including
the recitals hereto) shall have the meanings given to them in the Notes.
2. Amendment.
(A) Section 8.4 of each Note is hereby amended by inserting the
following at the end of the first paragraph thereof:
"; provided, however, that at any time that the Company or any
Subsidiary has outstanding any Receivables Obligations the foregoing
aggregate principal amount of Priority Indebtedness shall not exceed
16% of Stockholders' Equity; and provided, further, in the event that
the most recent consolidated balance sheet of the Company and its
Subsidiaries provided hereunder reflect amounts due as a receivable
from the Person that is owed such Receivables Obligations in an amount
in excess of $10,000,000, such excess amount shall be treated as
Priority Indebtedness for purposes of this Section 8.4 and shall be
subject to the foregoing proviso."
(B) Section 8.6(A)(i) of each Note is hereby deleted and the following
is substituted therefor:
"(i) if such sale or disposition is (a) in the ordinary course
of business, (b) a sale or disposition of Receivables by the Company to
a Subsidiary or by any Subsidiary to another Subsidiary, or (c) a sale
or disposition of Receivables by a Subsidiary to any Person, whether
such sale is with or without recourse, if the obligations of such
Subsidiary to the purchaser thereof in respect of such sale or
disposition are Receivables Obligations of that
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Subsidiary, but only to the extent those Receivables
Obligations do not exceed the Receivables obligations Cap or"
(C) Section 8.6(A)(x) of each Note is hereby deleted and the following
is substituted, therefor:
"(x) the aggregate book value of all such sales or dispositions (on a
consolidated basis) (1) during the most recent 12-month accounting period
would exceed (iii) 15% of Total Assets or (iv) if during that 12-month
accounting period the Company or any Subsidiary has outstanding any Receivables
Obligations, 10% of Total Assets, in either case as computed at the end of the
most recent quarter preceding such sale or (2) since the Closing Date would
exceed (v) 25% of Total Assets or (vi) if the Company or any Subsidiary has
outstanding any Receivables Obligations, 20% of Total Assets, in either case as
computed at the end of the most recent fiscal year preceding such sale or".
(D) Section 8.7 of each Note is hereby deleted and the following is
substituted therefor:
"8.7. Intercompany Indebtedness. The Company will not create,
incur, assume or guarantee, or otherwise become or be liable in respect
of, any Indebtedness in an aggregate principal amount in excess of
Seven Million Five Hundred Thousand Dollars ($7,500,000) owing to any
Subsidiary or Affiliate, unless such Indebtedness in excess of that
amount is unsecured and is subordinated and junior in right of payment
to the Notes on substantially the terms set forth in Exhibit 8.7
attached hereto."
(E) Section 10 of each Note is hereby amended as follows:
1. The definition of Leverage is amended by deleting the following
phrase on the tenth and eleventh lines thereof: "for Borrowed Money to the
extent specified in clause (a) above plus the Stockholder's Equity, all".
2. The definition of Indebtedness is amended by inserting the
following at the end of that definition:
"provided, however, that there shall be excluded from the
definition of Indebtedness any Receivables Obligations."
3. The definition of Priority Indebtedness is amended by inserting
the following at the end of that definition:
", other than any Indebtedness of any Subsidiary to another
Subsidiary."
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4. The following definitions are inserted in alphabetical order:
"Receivables" means any right to payment from a Person, whether
constituting an account, chattel paper, instrument or general intangible,
arising from the sale of merchandise or provision of services by the Company or
any Subsidiary, and includes the right to payment of any interest or finance
charges and other obligations of such Person with respect thereto, together
with the following: (a) all rights to, but not any obligations under, all
related contracts or agreements pursuant to or under which such Person is
obligated to make payments with respect to the sale of goods or provision of
services; (b) all security interests, liens, guarantees, and other agreements
or arrangements of any nature whatsoever from time to time supporting or
securing any such right to payment; (c) all books and records evidencing or
otherwise relating to the foregoing; and (d) all collections and other
proceeds, including insurance policies, relating to any of the foregoing.
"Receivables Obligations Cap" means, with respect to the portion of
the Receivables Obligations that would correspond to principal if those
Receivables Obligations were treated as indebtedness for purposes of generally
accepted accounting principles, an amount equal to Fifty Million Dollars
($50,000,000), which amount may be increased by Five Million Dollars
($5,000,000) during each fiscal year of the Company commencing July 1, 1996 and
July 1, 1997 so long as no Event of Default has occurred and is continuing at
the time of that increase.
"Receivables Obligations" means any obligation of a Subsidiary
arising from the sale by that Subsidiary of Receivables to any other Person,
whether on a recourse or nonrecourse basis, that for purposes of GAAP is not
classified upon the balance sheet of that Subsidiary as a liability of that
Subsidiary.
3. Miscellaneous.
(a) This Amendment shall he construed in accordance with and
governed by the laws of the State of Ohio, without reference to principles of
conflicts of law.
(b) This Amendment may be executed in two or more counterparts, each
of which shall constitute an original, but all of which, when taken together,
shall constitute but one instrument.
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IN WITNESS WHEREOF, the parties have caused this Amendment to be duly
executed by their respective duly authorized officers as of the day and year
first above written.
THE STANDARD PRODUCTS COMPANY
By: /s/ Xxxxxxx X. Xxxx
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Title:
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METROPOLITAN LIFE INSURANCE COMPANY
By: /s/ Xxxxxx Xxxxxx
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Title: Assistant Vice President
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METROPOLITAN PROPERTY AND CASUALTY
INSURANCE COMPANY
By: /s/ Xxxxxx X. Xxxx
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Title:
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METROPOLITAN INSURANCE AND ANNUITY
COMPANY
By: /s/ Xxxxxxx X. Xxxxxxxxxx
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Title:
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